People v. Galindo CA1/1

Filed 12/10/20 P. v. Galindo CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A154509

v. (Mendocino County SAMMUEL PAUL GALINDO, Super. Ct. Nos. SCUK-CRPA-17- 92745, SCUK-CRCR-17-92746) Defendant and Appellant.

MEMORANDUM OPINION1 Defendant Sammuel Paul Galindo was charged in December 2017 with one count of mayhem (Pen. Code,2 § 203; count one), and one count of criminal threats (§ 422; count two). The complaint alleged two prior strikes (§§ 667, 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and three prior prison term commitments (§ 667.5, subd. (b)). The same day the complaint was filed, the Division of Adult Parole Operations filed a petition to revoke defendant’s parole. Defendant was subject to a 37-year maximum prison term based on the charges, but agreed to a negotiated plea of 19 years in state prison. Pursuant

We resolve this case by a memorandum opinion pursuant to the 1

California Standards of Judicial Administration, section 8.1(1) & (2). 2 All further statutory references are to the Penal Code.

to the plea, defendant pled no contest to mayhem and admitted one prior strike, two prior serious felony convictions, and one prior prison term commitment. The trial court also found defendant in violation of parole pursuant to his plea. After he was sentenced, defendant appealed, arguing that his case must be remanded for resentencing under Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393), which allows trial courts to decide whether to strike or dismiss prior serious felony convictions, a discretionary authority they lacked at the time defendant was sentenced. We concluded that although Senate Bill 1393 applied retroactively to defendant’s case, his appeal must be dismissed because he failed to obtain a certificate of probable cause from the trial court. Defendant filed a petition for review in the California Supreme Court. The Supreme Court granted the petition and deferred further action pending its decision in People v. Stamps, review granted June 12, 2019, S255843. People v. Stamps (2020) 9 Cal.5th 685 (Stamps) held that a defendant does not need a certificate of probable cause to obtain a remand for the trial court to exercise its discretion under Senate Bill 1393. (Stamps, at p. 692.) Stamps reasoned that such an appellate claim “does not constitute an attack on the validity of [the] plea because the claim does not challenge [the] plea as defective when made.” (Id. at p. 696.) Stamps agreed with us, however, that a defendant is not entitled to have the trial court “exercise its discretion to strike [an] enhancement but otherwise maintain [a] plea bargain” for a specified term. (Stamps, supra, 9 Cal.5th at p. 692.) Rather, if a trial court exercises its discretion to strike an enhancement on remand, the prosecution is entitled to withdraw from the plea agreement, and the court is entitled to withdraw its approval of the