People v. Hernandez CA5

Filed 2/25/22 P. v. Hernandez CA5 Opinion following remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080131 Plaintiff and Respondent, (Kern Super. Ct. No. BF177632A) v.

JOSE ANTONIO HERNANDEZ, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Appellant and defendant Jose Antonio Hernandez entered a plea negotiation in which he agreed to a term of 10 years in state prison. The 10-year term included the imposition of two prior prison term enhancements. On appeal, he argued the enhancements must be dismissed because of the subsequent enactment of Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) that amended Penal Code1 section 667.5, subdivision (b). Defendant further argued that on remand, he could not be sentenced to more than the 10-year term that the prosecution agreed to as part of the plea agreement. This court relied on the California Supreme Court’s ruling in People v. Stamps (2020) 9 Cal.5th 685 (Stamps), vacated defendant’s sentence, and remanded to the trial court to dismiss the prior prison term enhancements, and held the People could either agree to modify the bargain to reflect the downward departure in the sentence, or choose to withdraw from the original plea agreement, and the court could choose to withdraw its prior approval of the plea agreement. Thereafter, the California Supreme Court granted defendant’s petition for review, vacated this court’s opinion, and remanded to reconsider the cause in light of the enactment of Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483), which declares enhancements under former section 667.5, subdivision (b) legally invalid, requires resentencing, and prohibits the prosecutor and trial court from rescinding the plea agreement as a result of the legal invalidity of the former section 667.5, subdivision (b) enhancements. We therefore strike the two one-year prior prison term enhancements under former section 667.5, subdivision (b), and remand for resentencing consistent with section 1171.1. In all other respects, we will affirm the judgment.