People v. Kleinau CA3

Filed 3/4/21 P. v. Kleinau CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Nevada) ----

THE PEOPLE, C092104

Plaintiff and Respondent, (Super. Ct. No. F18000268)

v.

JAMES ANTHONY KLEINAU,

Defendant and Appellant.

Defendant James Anthony Kleinau pleaded no contest to reckless evading a peace officer and admitted four prior prison terms as part of a negotiated plea agreement that included a stipulated sentence. The trial court sentenced defendant to a term of seven years in prison, including the upper term of three years in prison on the evading charge and one year for each of the four prior prison terms. On appeal, defendant contends that Senate Bill No. 136 (2019-2020 Reg. Sess.) applies retroactively to his case and requires that the four prior prison term enhancements be stricken. The Attorney General agrees.

1

However, the parties disagree as to the effect of the new law’s application on the plea agreement. We agree with both parties that, because of the retroactive change in the law, defendant’s prior prison term enhancements are unauthorized and must be stricken. Noting that the remaining term of three years in prison is less than half the sentence of seven years in prison originally agreed upon by the parties at the time of the plea, we agree with the Attorney General that remand is required. We remand the matter to the trial court with directions to strike the enhancements and provide both parties an opportunity to withdraw from the plea agreement and negotiate anew. PROCEDURAL BACKGROUND The details of defendant’s crimes are not relevant to this appeal. It suffices to say that defendant was charged with evading a peace officer (Veh. Code, § 2800.2, subd. (a); count I), resisting a peace officer (Pen. Code, § 148, subd. (a)(1),1 count II), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count III), and possession of a controlled substance injection/ingestion device (Health & Saf. Code, § 11364, subd. (a); count IV). The prosecution also alleged defendant had a prior strike conviction and had served four prior prison terms. Defendant pleaded no contest to evading a peace officer and admitted the four prior prison terms; the prosecution dismissed the three remaining counts and the prior strike allegation per the negotiated plea agreement. The trial court imposed the seven- year prison sentence stipulated to by the parties, which included the upper term for the evading charge and one year for each of the four prior prison terms. The court suspended execution of the sentence and placed defendant on probation. Defendant later violated