People v. Niebla CA4/1

Filed 12/16/20 P. v. Niebla CA4/1

OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075037

Plaintiff and Respondent,

v. (Super. Ct. No. 212938)

LUIS FONSECA NIEBLA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Remanded with directions.

Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent. We dismissed this appeal in our prior opinion, filed on March 17, 2020, because defendant was seeking a modification of his plea agreement and did not

have a certificate of probable cause. (People v. Niebla (Mar. 17, 2020, D075037 [nonpub. opn.].) The Supreme Court granted review. It subsequently ruled in People v. Stamps (2020) 9 Cal.5th 685, 698 (Stamps) that a certificate of probable cause is not required for a defendant who entered a negotiated plea to seek relief on appeal based on a change in the law that benefitted defendant. The court transferred this case back to us with directions to vacate our prior decision and to reconsider the cause in light of Stamps. We requested and received supplemental briefs from both parties. We vacate our prior opinion of March 17, 2020. We now agree with defendant that this case should be remanded so that he may ask the court to exercise its discretion to consider striking the 10-year firearm enhancement that the court imposed in accordance with the plea bargain. If the court indicates a willingness to do so, it must first offer the People an opportunity to withdraw the plea. (Stamps, supra, 9 Cal.5th at p. 706.) BACKGROUND