Prosecutor May Vacate Plea Bargain When Prison Priors Are Struck

People v. Houle (Cal. Ct. App., May 18, 2021, No. A159055) 2021 WL 1975277, at *1–5

Summary: Defendant was sentenced to a stipulated six-year prison term after a plea bargain where 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 he was sentenced, section 667.5, subdivision (b) required a one-year enhancement for each prior prison term served for “any felony.”

After the judgment was entered, Senate Bill No. 136 amended section 667.5, subdivision (b), effective January 1, 2020, to narrow the prior prison term enhancement sexually violent offenses.

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.

The People agreed that  the amended version of section 667.5, subdivision (b) applies in this case but argue that 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.”

The Court of Appeal remanded for the trial court to strike the section 667.5, subdivision (b) enhancements and held  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).)


Amended section 667.5, subdivision (b) applies retroactively to all cases that are not final

Newly amended section 667.5, subdivision (b) eliminates punishment for a broad category of individuals and applies  retroactively to all eligible persons with nonfinal judgments, including defendant. (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.) 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.


Houle asked the 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 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. 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.’’ (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 held that if on remand “the court indicates an inclination to exercise its discretion …, the prosecution may … agree to modify the bargain to reflect the downward departure in the sentence such exercise would entail. Barring such a modification agreement, ‘the prosecutor is entitled to the same remedy as the defendant—withdrawal of assent to the plea agreement ….’ ” (Id. at p. 707, 264 Cal.Rptr.3d 769, 467 P.3d 168.)

In Griffin the First District concluded the defendant could not receive a longer sentence, reasoning that “such a result plainly would be inconsistent with the legislative intent underlying Senate Bill 136,” the purpose of which “was to decrease the length of sentences imposed on repeat felons by substantially narrowing the scope of application of the prior prison term enhancement.” (Griffin, supra, 57 Cal.App.5th at p. 1097, 272 Cal.Rptr.3d 170, It would be contrary to legislative intent and deprive Appellant of the benefit of his bargain were the trial court on remand to impose a longer sentence following Appellant’s entry of a guilty plea pursuant to a new agreement. ‘ “The process of plea bargaining … contemplates an agreement negotiated by the People and the defendant and approved by the court.” ’ (Stamps, supra, 9 Cal.5th at p. 705, 264 Cal.Rptr.3d 769, 467 P.3d 168.) ‘ “In exercising their discretion to approve or reject proposed plea bargains, trial courts are charged with the protection and promotion of the public’s interest in vigorous prosecution of the accused, imposition of appropriate punishment, and protection of victims of crimes.  For that reason, a trial court’s approval of a proposed plea bargain must represent an informed decision in furtherance of the interests of society ….” ’ (Id. at p. 706, 264 Cal.Rptr.3d 769, 467 P.3d 168.) We conclude that imposing a longer sentence would constitute an abuse of discretion.” (Griffin, supra, 57 Cal.App.5th at pp. 1098–1099, 272 Cal.Rptr.3d 170,; accord, Joaquin, supra, 58 Cal.App.5th at p. 179, 272 Cal.Rptr.3d 267, [following Griffin].)

This Court agreed with Griffin that after Stamps, the holding in Collins capping the length of the sentence based on the sentence imposed under the original plea bargain remains binding precedent that applies in this case. (See Griffin, supra, 57 Cal.App.5th at pp. 1105–1106, 272 Cal.Rptr.3d 170 (conc. opn. of Reardon, J.),

The Court reversed the judgment and directed  the trial court to strike the section 667.5, subdivision (b) enhancements and give the parties an opportunity to negotiate a new plea agreement consistent with this decision.


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