People v. Xaysana CA3

Filed 4/1/21 P. v. Xaysana CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C090946

Plaintiff and Respondent, (Super. Ct. No. 19CF04867)

v.

BARRY XAYSANA,

Defendant and Appellant.

In an open plea,1 defendant Barry Xaysana pleaded no contest to taking a vehicle without consent (Veh. Code, § 10851, subd. (a)) and admitted to a prior vehicle theft allegation (Pen. Code, § 666.5, subd. (a)),2 as well as two prior prison term allegations (§ 667.5, subd. (b)). The prior prison term allegations were based on defendant’s

1 An open plea is one under which the defendant is made no promises about the nature or duration of his sentence. (People v. Williams (1998) 17 Cal.4th 148, 156.) 2 Undesignated statutory references are to the Penal Code.

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violations of section 29800, subdivision (a)(1), and Vehicle Code sections 10851 and 2800.2. In exchange for defendant’s plea, the court granted the prosecution’s motion to dismiss charges for receiving a stolen vehicle (§ 496d, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)), plus allegations of three additional prior prison terms. The court sentenced defendant to six years in prison, comprised of the upper term of four years for taking a vehicle, plus one year each for the two prior prison term allegations. Defendant appeals, contending that we should strike the two one-year prior prison term enhancements in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), which amended section 667.5, subdivision (b) by limiting the offenses that qualify for the enhancement. The People concede the amendment applies retroactively to defendant, and we agree. The parties also initially agreed on the remedy, viz., to strike the enhancements and affirm the judgment as modified. However, after the People filed their responsive brief, our Supreme Court issued its opinion in People v. Stamps (2020) 9 Cal.5th 685 (Stamps), which addressed the proper remedy where the parties entered into a negotiated (stipulated) plea and the defendant sought the retroactive benefit of a different law, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). Following Stamps, the Courts of Appeal have issued diverging opinions on the appropriate remedy when the parties enter into a negotiated plea, stipulating to a specified sentence as part of their plea deal, and the defendant later seeks to strike prior prison enhancements under Senate Bill 136. (E.g., People v. France (2020) 58 Cal.App.5th 714, review granted Feb. 24, 2021, S266771; People v. Joaquin (2020) 58 Cal.App.5th 173, review granted Feb. 24, 2021, S266594; People v. Griffin (2020) 57 Cal.App.5th 1088, review granted Feb. 17, 2021, S266521; People v. Hernandez (2020) 55 Cal.App.5th 942, review granted Jan. 27, 2021, S265739; People v. Barton (2020) 52 Cal.App.5th 1145.) In light of the evolving case law, we requested supplemental briefing on the question of the proper remedy in this case. Specifically, we asked whether striking the