People v. Barrera CA5

California Court of Appeal Jun 1, 2021 No. F080629Unpublished

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Holding. The court held that the defendant's prior prison term enhancements must be stricken under Senate Bill 136, but that the matter must be remanded to allow the trial court and the prosecution the opportunity to rescind the plea agreement rather than unilaterally modifying the sentence.

Issues

Whether prior prison term enhancements must be stricken under Senate Bill 136.
Whether the appellate court should remand for the trial court and the People to elect to rescind the plea agreement.
Whether the defendant is entitled to withdraw from the plea agreement upon remand.
Whether a new sentence upon rescission of the plea agreement is capped by the original sentence.

Disposition. remanded

Quotations verified verbatim against the opinion

“Defendant’s prior prison term enhancements must therefore be stricken.”

“we conclude that the matter must be remanded to allow the People and the trial court the opportunity to rescind approval for the plea agreement.”

“Upon remand, if the plea agreement is vacated, the matter will be restored to the status quo ante and any eventual sentence will not be capped by the sentence imposed pursuant to the original plea agreement.”

Filed 6/1/21 P. v. Barrera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F080629 Plaintiff and Respondent, (Super. Ct. No. 19CM3059A) v.

MATTHEW JOSEPH BARRERA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Michael J. Reinhart, Judge. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Smith, J. and DeSantos, J.

Defendant Matthew Joseph Barrera entered into a stipulated plea agreement that included four prior prison term enhancements. He contends on appeal that his one-year prior prison term enhancements should be stricken pursuant to Penal Code section 667.5, subdivision (b),1 as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The People agree, as do we. We directed the parties to submit supplemental briefing regarding whether remand is necessary for the People or trial court to be permitted to elect whether to rescind approval for the plea agreement. Defendant contends we should strike the prior prison term enhancements without remanding the matter. If we do remand, defendant argues both parties should be afforded the opportunity to withdraw from the plea agreement. He further contends, if the plea agreement is rescinded, his sentence cannot exceed the original sentence. We disagree with defendant on all three issues. We vacate the sentence, order the prior prison term enhancements stricken, and remand for further proceedings consistent with People v. Stamps (2020) 9 Cal.5th 685 (Stamps) and People v. Hernandez (2020) 55 Cal.App.5th 942 (Hernandez) (review granted Jan. 27, 2021, S265739). In all other respects, we affirm. PROCEDURAL SUMMARY On July 1, 2019,2 the Kings County District Attorney charged defendant with sale of heroin (Health & Saf. Code, § 11352, subd. (a); count 1), possession of heroin for sale (Health & Saf. Code, § 11351; count 2), sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 4), misdemeanor driving under the influence of a drug (Veh. Code, § 23152, subd. (f); count 5), and misdemeanor disobeying a court order (§ 166,

People v. Barrera CA5

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