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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

JAMES ANTHONY KLEINAU,

Defendant and Appellant.

C092104

(Super. Ct. No. F18000268)

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. 
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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 sevenyear 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 

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 Undesignated statutory references are to the Penal Code.
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the terms of probation and the court executed the imposed sentence. Defendant timely 

appealed. 

DISCUSSION

Defendant contends, and the People agree, that recently enacted Senate Bill No. 

136, which limits the prior offenses that qualify for a prior prison term enhancement 

under section 667.5, subdivision (b) applies retroactively to his case. We agree with the 

parties. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Sen. Bill No. 136 applies 

retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 

664, 680-682 [same].) “Senate Bill 136 amended section 667.5, subdivision (b) such that 

a one-year enhancement for a prior prison term shall be imposed only if the prior term 

was for a sexually violent offense.” (People v. Winn (2020) 44 Cal.App.5th 859, 872.) 

Because defendant’s prior prison terms were not for sexually violent offenses, his oneyear enhancements, which were lawful at the time of sentencing, are now unauthorized. 

(See In re Blessing (1982) 129 Cal.App.3d 1026, 1030; People v. Harvey (1980) 112 

Cal.App.3d 132, 139.) 

If we were to modify the judgment to strike the now-unauthorized enhancements 

and do nothing else, as defendant argues we should, the seven-year stipulated sentence in 

prison would be reduced to three years. This despite the dismissal of three additional 

counts and a strike in order to accommodate the agreed-upon sentence. But the four prior 

prison term enhancements, which were essential components of the plea agreement, are 

now unauthorized. This renders the plea agreement unenforceable. (See People v.

Griffin (2020) 57 Cal.App.5th 1088, 1096 (Griffin) [because Senate Bill No. 136 

“categorically removed authorization to impose” the enhancement, the plea agreement 

incorporating the enhancement “is no longer enforceable”].)

The Attorney General cites People v. Stamps (2020) 9 Cal.5th 685 (Stamps) and 

argues that the case should be remanded so the prosecution may decide whether to accept 

the substantial reduction in sentence or withdraw from the plea agreement. Defendant 
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cites People v. Matthews (2020) 47 Cal.App.5th 857 and responds that Stamps is 

distinguishable because--unlike the change in the law discussed in that case--here the 

change in the law promulgated by Senate Bill No. 136 did not grant the trial court new 

discretion to strike the sentence enhancements. Instead, it removed the prior prison term 

enhancements and rendered the associated one-year prison terms unauthorized sentences. 

We conclude that neither Stamps nor Matthews is directly on point to this 

situation, as we next explain. But those and other relevant authorities, together with the 

specific facts of this case, compel our conclusion that remand is required.

In Stamps the defendant pleaded no contest to one count of first degree burglary 

and stipulated to a nine-year prison sentence that included five years for a prior serious 

felony enhancement (§ 667, subd. (a)(1)); the remaining counts and allegation were 

dismissed as part of the plea agreement (Stamps, supra, 9 Cal.5th at p. 693). 

At the time of sentencing, the trial court did not have discretion to strike the 

serious felony enhancement, but while defendant’s appeal was pending, Senate Bill No. 

1393 (2017-2018 Reg. Sess.) took effect and gave trial courts the discretion to do so. 

(Stamps, supra, 9 Cal.5th at p. 693.) 

Our Supreme Court rejected the defendant’s argument that the proper remedy was 

to remand the matter to the trial court to consider striking the serious felony 

enhancement, “while otherwise maintaining the plea agreement intact.” (Stamps, supra, 

9 Cal.5th at p. 700.) The court explained that “[o]nce the court has accepted the terms of 

the negotiated plea, ‘[it] lacks jurisdiction to alter the terms of a plea bargain so that it 

becomes more favorable to a defendant unless, of course, the parties agree.’ ” (Id. at p. 

701.) Thus, the court concluded Senate Bill No. 1393 was not intended “to change wellsettled law that a court lacks discretion to modify a plea agreement unless the parties 

agree to the modification.” (Stamps, at p. 702.) Stamps answered the question of what 

the trial court could do to the plea agreement on remand, on its own, rather than the 

effect of a change in the law on the plea agreement itself and the parties’ actions. 
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Here, as defendant notes, the trial court would not be exercising its discretion to 

change the terms of defendant’s plea agreement, unilaterally or otherwise. Senate Bill 

No. 136 simply eliminated the prior prison term enhancements to which he pleaded, as 

well as the associated punishment. (People v. Jennings, supra, 42 Cal.App.5th at p. 681.) 

The legislative actions in Senate Bill 136 affect the sentence in the plea agreement 

directly, rather than giving the trial court discretion to strike a portion of that sentence. 

(Doe v. Harris (2013) 57 Cal.4th 64, 73 [“the general rule in California is that a plea 

agreement is ‘ “ deemed to incorporate and contemplate not only the existing law but the 

reserve power of the state to amend the law or enact additional laws for the public good 

and in pursuance of public policy” ’ ”]; see Griffin, supra, 57 Cal.App.5th at p. 1096

[observing that “while Stamps’ remand instructions provided that the prosecution could 

withdraw from the plea agreement only if the trial court indicated its intent to exercise its 

discretion to strike the serious felony enhancement, the plea agreement in the present case 

is no longer enforceable”].)

Here, as in Griffin but not as in Stamps, the enhancements at issue are now 

unauthorized, and the court cannot enforce or approve the plea agreement, whether 

defendant seeks the change or not. (People v. Shaw (2020) 56 Cal.App.5th 582, 588

[post-Senate Bill 136, prior prison term enhancements “are unauthorized and must be 

stricken”]; People v. Harvey, supra, 112 Cal.App.3d at p. 139 [“in computing one’s 

sentence under a plea bargain, even though agreed to by the parties, the court may not 

give effect to an enhancement unauthorized by law”].)

Defendant relies on People v. Matthews, supra, 47 Cal.App.5th 857, which was 

decided by the First Appellate District, Division Two, two months before the high court 

decided Stamps. But that court did not decide the precise issue before us; in Matthews, 

the People sought unilateral resentencing by the trial court to achieve the previously 

agreed-upon sentence after striking certain components thereof. The Matthews court held 

that a trial court “cannot, in striking the enhancements invalidated by Senate Bill No. 136
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(2019-2020 Reg. Sess.), reconsider other aspects of the sentences [the defendant] and the 

People specifically agreed to under the plea agreements.” (Id. at p. 869.) In Matthews

the People asked for remand for the trial court to resentence the defendant in order to 

achieve the agreed-upon stipulated sentence after the now-invalid prior term 

enhancements were stricken. (Id. at pp. 860, 866.) The Matthews court declined to do 

so, holding that: “The plea agreement here specifies the precise sentences to be imposed 

for each charge and enhancement, and we therefore conclude that the trial court lacks the 

power to alter those sentences except to eliminate enhancements affected by Senate Bill 

No. 136.” (Id. at p. 866.) Matthews’ holding that “the purposes of Senate Bill No. 136

. . . would be frustrated if the trial court were allowed to unilaterally alter agreed-to terms 

of a plea agreement after striking enhancement sentences as required by Senate Bill No. 

136” (id. at p. 868) is not on point to the instant analysis; here, the People seek the 

opportunity to renegotiate or withdraw from the now unenforceable plea agreement. 

They do not ask us to tell the trial court to unilaterally alter the agreement. Thus, 

Matthews, too, dealt with a different question than we must answer here.

“[T]he concept of reciprocal benefits” is an essential part of plea bargaining. 

(People v. Collins (1978) 21 Cal.3d 208, 214.) A defendant “agrees to plead guilty in 

order to obtain a reciprocal benefit, generally consisting of a less severe punishment” and 

the prosecution obtains “a certain ultimate result” in the form of a “term of punishment” 

for the defendant. (Id. at pp. 214-215.) The agreement is then approved or rejected by 

the trial court as part of “an informed decision in furtherance of the interests of society.” 

(In re Alvernaz (1992) 2 Cal.4th 924, 941.) When “either the prosecution or the 

defendant is deprived of benefits for which it has bargained, corresponding relief will lie 

from concessions made.” (Collins, at p. 214.)

As we have explained, the parties agree that Senate Bill No. 136 rendered 

defendant’s prior prison term enhancements unauthorized. The enhancements, which 

amounted to four years of defendant’s seven-year sentence, were a specific term of the 
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plea agreement. Because the enhancements formed a part of the stipulated sentence, the 

plea agreement is unenforceable, and the trial court can no longer give approval or effect 

to the agreement in its current form. (In re Williams (2000) 83 Cal.App.4th 936, 944 [“A 

plea bargain that purports to authorize the court to exercise a power it does not have is 

unlawful and may not be enforced.”].) Moreover, the absence of the enhancements 

deprives the prosecution of a material benefit of the plea agreement. As a result of the 

retroactive change in the law, the majority of defendant’s agreed-upon sentence is now 

unlawful. Defendant’s proposed remedy--to strike the enhancements but require the 

parties to be bound to the other terms of the plea agreement--is untenable; it would bind 

the court to an agreement it did not approve in the initial instance and would change 

material terms upon which the prosecution relied when entering into the agreement. 

Thus, the parties should be allowed to withdraw their assent to the plea agreement and 

renegotiate a new settlement. (People v. Kim (2011) 193 Cal.App.4th 1355, 1361-1362; 

People v. Barton (2020) 52 Cal.App.5th 1145, 1159 [“[T]he parties’ plea agreement is 

unenforceable and the trial court cannot approve of the agreement in its current form. . . . 

Whether by withdrawal of its prior approval or the granting of a withdrawal/rescission 

request by one or both of the parties, the trial court ‘ “ ‘must restore the parties to the 

status quo ante.’ ” ’ . . . The parties may then enter into a new plea agreement, which will 

be subject to the trial court’s approval, or they may proceed to trial on the reinstated 

charges”]; Griffin, supra, 57 Cal.App.5th at p. 1096, citing Barton, at p. 1159 [“The same 

reasoning applies with respect to Senate Bill 136”].)

We further agree with Griffin, supra, 57 Cal.App.5th 1088 for the reasons stated 

therein, that on remand the trial court may not impose a higher sentence than that 

contemplated by the original plea agreement, here seven years in prison, should the 

parties reach a new agreement. We will remand this matter to the trial court with 

directions to strike the prior prison term enhancements and to allow the parties to 

negotiate the terms of the plea agreement anew.
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DISPOSITION

The matter is remanded to the trial court with directions to strike the four one-year 

prior prison term enhancements under section 667.5, subdivision (b) and conduct further 

proceedings as necessary in accordance with this opinion.

 /s/

Duarte, J.

I concur:

 /s/

Raye, P.J.
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Mauro, J., Concurring.

I concur in the result. 

__________/s/_______________

Mauro, J.