People v. McLarney CA4/1

Filed 4/21/21 P. v. McLarney CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077473

Plaintiff and Respondent,

v. (Super. Ct. No. SCD277868)

RYAN P. MCLARNEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Sentence modified and case remanded with directions. Neil Auwarter, 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 Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

Ryan P. McLarney pleaded guilty to violating a domestic restraining

order with a previous conviction within seven years (Pen. Code,1 § 166, subds. (c)(1) & (4)). He admitted three prison priors (§ 667.5, subd. (b)). As part of the agreement, the prosecutor agreed to dismiss the alleged strike prior (§ 667, subds.(b)-(i)) and to not oppose local time as a condition of probation with 365 days in local custody. McLarney failed to appear for sentencing. When he was later brought to court, the trial judge denied probation and sentenced McLarney to a term of six years in prison (the three-year upper term, plus three years for the prison priors). McLarney made a subsequent motion to strike the prison priors pursuant to Senate Bill No. 136. The trial court denied the motion. In June 2020, this court granted McLarney’s request for a constructive notice of appeal. McLarney filed an appeal from the order denying his motion to strike the prison priors. In this appeal, the parties properly agree the prison priors are now invalid following the enactment of Senate Bill No. 136 and that they must be stricken. They disagree as to the manner in which this court handles the striking of the priors. McLarney argues we should simply strike the priors, modify the sentence, and affirm as modified. The People argue we should remand the case to the trial court with directions to strike the priors and to allow the People to withdraw from the plea agreement if they choose to do so. We opt for a different approach. As we will discuss below, the law is unsettled as to the ability of the People or the court to withdraw from a plea agreement when a post-