People v. McDonald

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DONTAY MCDONALD, Defendant and Appellant.

C090926

California Court of Appeals, Third District, San Joaquin

August 23, 2021

NOT TO BE PUBLISHED

Super Ct. No. STKCRFER20190005600

Robie Acting P. J.

Defendant Anthony Dontay McDonald entered a negotiated plea, in which he pled no contest to the sale or transportation of cocaine and admitted he had two prior prison terms within the meaning of Penal Code^[1] section 667.5, subdivision (b). In exchange, the prosecution dismissed the charge of possession for sale of cocaine and all other enhancements. The trial court sentenced defendant to the stipulated prison term of five years, which consisted of the low term of three years for the sale or transportation of cocaine plus one year for each of the prior prison term enhancements.

Defendant advances two arguments on appeal. First, defendant contends and the People agree, that the two one-year prior prison term enhancements must be stricken because of recently adopted Senate Bill No. 136 (2019-2020 Reg. Sess.). The parties however, dispute the proper remedy in that regard. Specifically, defendant argues the enhancements may be stricken on appeal while keeping the remainder of the plea agreement intact; whereas, the People argue the case must be remanded to permit the prosecution to either accept the reduced sentence or withdraw from the plea agreement, relying on People v. Stamps (2020) 9 Cal.5th 685. Second defendant contends, and the People again agree, that the narcotics registration requirement should be stricken from the abstract of judgment because the Legislature repealed Health and Safety Code section 11590.

The parties correctly observe the narcotics offender registration requirement must be stricken. The parties further appropriately agree the two one-year enhancements must be stricken because Senate Bill No. 136 retroactively modified the plea agreement. As to the remedy in that regard, Stamps is inapplicable. In the absence of controlling Supreme Court precedent and under the circumstances of this case, the appropriate remedy is to strike the enhancements on appeal.

DISCUSSION

The substantive facts underlying defendant's conviction are not relevant to the issues raised on appeal and are not recounted here.

I The Narcotics Offender Registration Requirement Must Be Stricken

Defendant and the People agree defendant's narcotics offender registration requirement should be stricken because the Legislature repealed Health and Safety Code section 11590 which required persons convicted of certain offenses involving controlled substances to register as narcotics offenders with the local law enforcement agency. (Stats. 2019, ch. 580, § 2.) The repeal became effective on January 1, 2020, while defendant's case was still pending and not yet final. The parties are correct.

In Estrada, our Supreme Court addressed the retroactive application of a criminal statute amended to mitigate the punishment for a proscribed act prior to final judgment in a defendant's case. (In re Estrada (1965) 63 Cal.2d 740, 742.) “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Id. at p. 745.) Our Supreme Court relied on the common law rule that, “when the old law in effect when the act is committed is repealed, and there is no saving clause, all prosecutions not reduced to final judgment are barred.” (Id. at pp. 746-747.) Our Supreme Court recently affirmed the Estrada rule. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299; People v. Frahs (2020) 9 Cal.5th 618.)

The repeal of Health and Safety Code section 11590 served to eliminate a burden that narcotics offenders once shouldered. In accordance with Estrada, the narcotics offender registration requirement must be stricken.

II Senate Bill No. 136

Signed by the Governor on October 8, 2019, and effective January 1 2020, Senate Bill No. 136 amends 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).

Defendant argues Senate Bill No. 136 applies retroactively to him and, because the trial court would exercise no discretion on remand, it is appropriate for this court to strike the prior prison term enhancements on appeal. The People agree Senate Bill No. 136 applies retroactively but assert the proper remedy is to remand for the trial court to strike the enhancements and allow the prosecution to either accept the lower sentence or withdraw from the plea agreement because Senate Bill No. 136 “was intended to ameliorate punishment for a particular enhancement provision, and neither its text nor its legislative history addresses plea bargaining.” (Citing People v. Stamps, supra, 9 Cal.5th at p. 685.)

The parties correctly observe Senate Bill No. 136 applies retroactively to defendant. As to the remedy, we agree with defendant that it is appropriate in this case to strike the enhancements on appeal. Admittedly, our appellate courts are once again vexed by the remedy arising from the application of retroactive ameliorative legislation to plea agreements following the enactment of Senate Bill No. 136 -- specifically, as to stipulated sentences when a portion of those sentences must be stricken. (See, e.g., People v. France (2020) 58 Cal.App.5th 714, 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, 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, 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 enhancements at issue here.

A Senate Bill No. 136 Applies Retroactively

As this court explained in Andahl, Senate Bill No. 136 applies retroactively. (People v. Andahl (2021) 62 Cal.App.5th 203, review granted June 16, 2021, S268336.) Because Senate Bill No. 136 is now effective and defendant's judgment is not yet final, the amended law applies retroactively to him. (In re Estrada, supra, 63 Cal.2d at pp. 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when statute takes effect]; see People v. Buycks (2018) 5 Cal.5th 857, 882 [“ ‘The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses' ”].)

B Stamps Does Not Apply And The Unauthorized Enhancements Are Stricken

In Stamps, the defendant “was charged with three counts of first degree burglary [citations]. The complaint also alleged two prior first degree burglary convictions as serious felonies under the ‘Three Strikes' law and the serious felony enhancement provision. Three state prison prior convictions were also alleged. [Citation.] Had defendant been convicted of all counts and enhancements, he would have been subject to the 25-year-to-life provisions of the Three Strikes law [citation] along with any applicable fixed-term enhancements.

“In November 2017, pursuant to negotiation, defendant pled to one first degree burglary and admitted one serious felony conviction in exchange for a nine-year prison sentence, based on the low term for burglary (two years), doubled under the Three Strikes law [citation], plus five years for the serious felony enhancement. All remaining counts and allegations were dismissed on motion of the district attorney as part of the plea agreement. Defendant was sentenced in January 2018 subsequently filed a notice of appeal, and sought a certificate of probable cause [citations], which the trial court denied.” (People v. Stamps, supra, 9 Cal.5th at p. 693, fn. omitted.)

The Governor approved Senate Bill No. 1393 (2017-2018 Reg. Sess.) on September 30, 2018, allowing a trial court to dismiss a serious felony enhancement in furtherance of justice, as provided under section 1385. Because his judgment was not yet final, the defendant argued on appeal that the legislation entitled him to remand for the trial court to exercise its discretion whether to strike the serious felony enhancement; defendant argued the plea agreement otherwise had to remain intact. (People v. Stamps, supra, 9 Cal.5th at p. 693.) Our Supreme Court disagreed with the defendant's proposed remedy.

Our Supreme Court's analysis turned on whether, by enacting Senate Bill No. 1393, the Legislature intended to overturn long-standing law preventing a trial court from unilaterally modifying an agreed-upon term of a plea agreement by...