People v. Arellano CA2/7

Filed 9/14/20 P. v. Arellano CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B300847

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA112598) v.

EDGAR ARELLANO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Salvatore Sirna, Judge. Reversed and remanded with directions. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, and Scott A. Taryle, Deputy Attorney General, for Plaintiff and Respondent.

Edgar Arellano, sentenced pursuant to a negotiated plea agreement to state prison for 22 years for first degree burglary with prior conviction enhancements, moved for resentencing pursuant to Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1 & 2) (Senate Bill 1393), which, effective January 1, 2019, allows the trial court to exercise its discretion to strike or dismiss Penal Code section 667, subdivision (a), prior serious felony enhancements. The trial court denied the motion, ruling Senate Bill 1393 was not retroactive and, in any event, did not apply when the defendant had agreed in a negotiated plea to a specific prison term that included those enhancements. While Arellano’s appeal of the denial of his postjudgment motion was pending in this court, the Supreme Court decided People v. Stamps (2020) 9 Cal.5th 685 (Stamps), holding Senate Bill 1393 applies to any case not yet final on appeal on its effective date; a defendant sentenced pursuant to a negotiated plea agreement need not obtain a certificate of probable cause to claim on appeal the new law applies to him or her; Senate Bill 1393 applies to negotiated sentences, at least to a limited extent; but, if the trial court is inclined to exercise its discretion not to impose a prior serious felony enhancement that was part of a negotiated sentence, the prosecutor is entitled to withdraw assent to the plea agreement. Based on Stamps, we reverse the postjudgment order denying Arellano’s motion for resentencing and remand the matter to provide Arellano the opportunity to ask the trial court to exercise its discretion not to impose the prior serious felony enhancements and, if such a request is made, for the parties and the trial court to follow the process approved in Stamps.