Filed 9/17/24 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES MICHAEL SHALAU SMITH,

Defendant and Appellant.

F086360

(Super. Ct. No. F16901823)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Houry A. 

Sanderson, Judge.

Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and 

Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

*Before Peña, Acting P. J., Meehan, J. and Snauffer, J.
2.

INTRODUCTION

In 2017, defendant Charlie Michael Smith1 pleaded no contest to attempted 

murder (Pen. Code, §§ 187, 664; count 1) and possession of a weapon while incarcerated

(§ 4502; count 2). (Undesignated statutory references are to the Penal Code.) He also 

admitted a prior serious felony enhancement allegation (§ 667, subd. (a)), a strike prior 

allegation (§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and two prison prior 

allegations (§ 667.5, former subd. (b)). Pursuant to the stipulated plea agreement, 

defendant was sentenced to a term of 26 years, which consisted of an upper term of 18

years on count 1 (the upper term doubled based upon the strike prior), two years (onethird the midterm) for count 2, plus five years for the prior serious felony enhancement

(§ 667, subd. (a)), and one year for one of the section 667.5, former subdivision (b) 

prison prior enhancements.

In 2022, the California Department of Corrections and Rehabilitation identified 

defendant as an individual potentially eligible for resentencing pursuant to Senate Bill 

No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483). The trial court indicated it did not 

believe defendant was entitled to a full resentencing in light of the plea agreement, but it 

struck the prison prior enhancement and resentenced defendant to a term of 25 years.

On appeal, defendant asserts the court erred in failing to conduct a full 

resentencing; accordingly, the matter must be remanded and any further reduction of his 

sentence on resentencing shall not be a basis for the People or the court to withdraw from 

the plea agreement. The People agree that defendant is entitled to a full resentencing, but 

they contend if, upon remand, the court alters the parties’ plea agreement by further 

reducing defendant’s sentence beyond striking the prior prison term enhancement, they 

1The court corrected the record in May 2023 to show defendant’s true name to be Charles 

Michael Shalau Smith.
3.

have the option to withdraw from the plea agreement pursuant to People v. Stamps (2020) 

9 Cal.5th 685.

We vacate the court’s order and remand for further proceedings consistent with 

this opinion.

FACTUAL AND PROCEDURAL HISTORY

Charges, Verdict, and Original Sentence

In March 2016, defendant was charged with committing attempted premeditated 

murder of Andrew Bratton (§§ 187, 664; count 1) and possession of a weapon while 

incarcerated (§ 4502; count 2). It was also alleged defendant suffered a prior serious 

felony conviction within the meaning of section 667, subdivision (a) that also qualified as 

a strike prior based on a 2007 burglary conviction (§§ 211, 212.5, subd. (a)), a prior 

violent felony conviction (§ 667.5, subd. (a)), and that he served two prior prison terms 

that qualified as prior prison term enhancements under section 667.5, former subdivision

(b).

On March 9, 2017, in accordance with a stipulated plea agreement, defendant 

pleaded no contest to attempted murder (§§ 187, 664; count 1) and possession of a 

weapon while incarcerated (§ 4502; count 2), admitted the prior serious felony and strike 

prior enhancements (§§ 667, subd. (a), 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and 

admitted both prison prior allegations (§ 667.5, former subd. (b)).

2 He was sentenced to 

a term of 26 years. The sentence was composed of an upper term of 18 years on count 1

(the upper term doubled based upon the strike prior), two years (one-third the midterm) 

for count 2, plus five years for the prior serious felony enhancement (§ 667, subd. (a)), 

2Pursuant to the plea agreement, the People struck the allegation the attempted murder 

was willful, deliberate, and premeditated and the prior violent felony allegation (§ 667.5, subd.

(a)).
4.

and one year for one of the section 667.5, former subdivision (b) prison prior 

enhancements.3

Resentencing Proceedings

After the passage of Senate Bill 483, the California Department of Corrections and 

Rehabilitation (CDCR) identified defendant as an individual potentially eligible for 

resentencing. In August 2022, the court held a hearing at which it appointed defendant 

counsel. Before the next hearing, defendant filed a brief arguing the court should find 

individuals, including defendant, who were sentenced pursuant to a stipulated plea 

agreement are eligible for full resentencing under section 1172.75. The People also filed 

a brief in which they asserted defendant is entitled to have his prison prior enhancement 

stricken because it is now invalid, but the court was without discretion to conduct a full 

resentencing hearing.

On May 24, 2023, the court held a hearing during which the People again agreed 

defendant was eligible to have his prison prior enhancement stricken, but they asserted 

defendant was not entitled to any other relief because the matter was a stipulated plea and 

sentence. Defense counsel argued, once the court recalled the sentence and struck the 

prison prior enhancement, defendant should be entitled to a full resentencing despite the 

fact he was originally sentenced pursuant to a stipulated plea agreement.

The court denied that a full resentencing was appropriate in light of the stipulated 

plea agreement. It explained it did not believe “that a stipulated plea should be reversed 

in the sense that taken apart, picked because that was something that the parties agreed 

on, except to remove that which is no longer a valid prior. To the extent that [defendant]

has one prison prior that is invalid by current law, other than that, this Court does not 

believe that any further modifications is [sic] appropriate. The Court does not believe a 

3The prior conviction forming the basis for the second prison prior enhancement pursuant 

to section 667.5, former subdivision (b) was reduced to a misdemeanor pursuant to Proposition 

47 and the related enhancement was dismissed.
5.

stipulated plea agreement should be set aside merely because the defense now wants to 

get resentencing. It is not as clear as the defense believes the legislation says. I 

understand the desire is to reduce the sentence by removing the prison prior and a full 

resentencing when appropriate. This is not one of those cases, so the Court is not 

inclined to do that.”

The court struck the section 667.5, former subdivision (b) prison prior 

enhancement and otherwise reinstated the terms of the original sentence for a total term 

of 25 years.

DISCUSSION

Defendant appeals from the court’s order, asserting the court erred in failing to 

conduct a full resentencing. The People agree, but they contend if the court reduces 

defendant’s sentence further, the People should have the option to withdraw from the plea 

agreement.

I. Standard of Review

“‘“When we interpret a statute, ‘[o]ur fundamental task ... is to determine the 

Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory 

language, giving it a plain and commonsense meaning. ... If the language is clear, courts 

must generally follow its plain meaning unless a literal interpretation would result in 

absurd consequences the Legislature did not intend. If the statutory language permits

more than one reasonable interpretation, courts may consider other aids, such as the 

statute’s purpose, legislative history, and public policy.’ [Citation.] ‘Furthermore, we 

consider portions of a statute in the context of the entire statute and the statutory scheme 

of which it is a part, giving significance to every word, phrase, sentence, and part of an 

act in pursuance of the legislative purpose.’”’” (People v. Reynoza (2024) 15 Cal.5th 

982, 989–990.) “‘An uncodified section is part of the statutory law. [Citation.] “In 

considering the purpose of legislation, statements of the intent of the enacting body 
6.

contained in a preamble, while not conclusive, are entitled to consideration. [Citations.] 

Although such statements in an uncodified section do not confer power, determine rights, 

or enlarge the scope of a measure, they properly may be utilized as an aid in construing a 

statute.”’” (Doe v. Superior Court (2023) 15 Cal.5th 40, 69.)

II. Applicable Law

A. Passage of Senate Bill 483 and Enactment of Section 1172.75

In October of 2021, the Governor approved Senate Bill 483, effective on

January 1, 2022, which added section 1171.1 to the Penal Code, subsequently

renumbered as section 1172.75. This section declares: “Any sentence enhancement that

was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5,

except for any enhancement imposed for a prior conviction for a sexually violent offense

as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is

legally invalid.” (§ 1172.75, subd. (a).) The uncodified portion of Senate Bill 483 states,

in part, “It is the intent of the Legislature that any changes to a sentence as a result of the

act that added this section shall not be a basis for a prosecutor or court to rescind a plea

agreement.” (Stats. 2021, ch. 728, § 1.)

Section 1172.75 establishes a mechanism to provide affected defendants an 

avenue for relief from now invalid prison prior enhancements. Subdivision (b) directs the 

Secretary of the CDCR and the correctional administrator of each county to “identify 

those persons in their custody currently serving a term for a judgment” that includes a 

now legally invalid prior prison term enhancement, and to provide the names of such 

persons, their dates of birth, and the relevant case numbers or docket numbers to the 

sentencing court that imposed the enhancement. (§ 1172.75, subd. (b).) After the court 

receives from the CDCR and county correctional administrator the information included 

in subdivision (b) of section 1172.75, “the court shall review the judgment and verify that 
7.

the current judgment includes a sentencing enhancement described in subdivision (a),”

and if so, “recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).)

Section 1172.75 provides, when resentencing a defendant, the court must “apply 

the sentencing rules of the Judicial Council and apply any other changes in law that 

reduce sentences or provide for judicial discretion so as to eliminate disparity of 

sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) “The 

court may consider postconviction factors, including, but not limited to, the disciplinary 

record and record of rehabilitation of the defendant while incarcerated, evidence that

reflects whether age, time served, and diminished physical condition, if any, have 

reduced the defendant’s risk for future violence, and evidence that reflects that 

circumstances have changed since the original sentencing so that continued incarceration 

is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).)

B. Senate Bill 483’s Effect on Stipulated Plea Agreements

When a plea of guilty or nolo contendere “is accepted by the prosecuting attorney 

in open court and is approved by the court, the defendant, except as otherwise provided in 

this section, cannot be sentenced on the plea to a punishment more severe than that 

specified in the plea and the court may not proceed as to the plea other than as specified 

in the plea.” (§ 1192.5, subd. (b).) However, “entering into a plea agreement does not 

insulate the parties ‘from changes in the law that the Legislature has intended to apply to 

them.’” (Harris v. Superior Court (2016) 1 Cal.5th 984, 991.)

In Harris, the California Supreme Court held the People are not entitled to set 

aside a plea agreement when a defendant seeks to have his sentence recalled under 

Proposition 47. (Harris v. Superior Court, supra, 1 Cal.5th at p. 993.) In reaching its 

conclusion, Harris noted the electorate, in passing Proposition 47, which reduced certain 

felonies to misdemeanors, expressly stated section 1170.18 governs someone “‘serving a 

sentence for a conviction, whether by trial or plea,’” of one of the affected felonies.
8.

(Harris, at p. 991.) Harris concluded “[t]he italicized language makes it clear that the 

provision applies to someone like defendant who was convicted by plea.” (Ibid.) That is, 

“[b]y expressly mentioning convictions by plea, Proposition 47 contemplated relief to all 

eligible defendants.” (Ibid.) The Harris court further concluded, “[t]he resentencing 

process that Proposition 47 established would often prove meaningless if the prosecution 

could respond to a successful resentencing petition by withdrawing from an underlying 

plea agreement and reinstating the original charges filed against the petitioner.” (Id. at p. 

992.) And permitting the People to withdraw from the plea agreement would be “at odds 

with” one of Proposition 47’s primary purposes “to reduce the number of nonviolent 

offenders in state prisons, thereby saving money and focusing prison on offenders 

considered more serious under the terms of the initiative.” (Ibid.) Thus, Harris held the 

“unambiguous language of section 1170.18 and the expressed intent of Proposition 47”

established the People could not withdraw from a stipulated plea agreement based upon 

changes to it resulting from Proposition 47. (1 Cal.5th at p. 992.)

In contrast, in People v. Stamps, supra, 9 Cal.5th 685, the defendant entered into a 

plea agreement for a specified term that included a prior serious felony enhancement

(§ 667, subd. (a)). (Stamps, at p. 693.) While his appeal was pending, a new law—

Senate Bill No. 1393 (2017–2018 Reg. Sess.)—went into effect permitting the trial court 

discretion to strike a serious felony enhancement in furtherance of justice (§ 1385, subd.

(a)), which it was not previously authorized to do. (9 Cal.5th at p. 693.) The California 

Supreme Court held the new law applied to the defendant retroactively, and the matter 

needed to be remanded to the trial court. (Id. at pp. 692, 699.) However, unlike in 

Harris, the Stamps court rejected the defendant’s contention that the court was authorized 

to exercise its discretion to strike the enhancement but otherwise maintain the plea 

bargain. (Id. at p. 701.) In so holding, the Stamps court reasoned, “[t]he Legislature may 

have intended to modify the sentencing scheme, but the legislative history does not 

demonstrate any intent to overturn existing law regarding a court’s lack of authority to 
9.

unilaterally modify a plea agreement. Indeed, none of the legislative history materials 

mention plea agreements at all. What legislative intent can be discerned runs counter to 

defendant’s position.” (Id. at p. 702.) Thus, “[n]othing in the language and legislative 

history of Senate Bill 1393 suggests an intent to modify section 1192.5’s mandate that 

‘the court may not proceed as to the plea other than as specified in the plea’ without the 

consent of the parties.” (Id. at p. 704.) “That Senate Bill 1393 is silent regarding pleas 

and provides no express mechanism for relief undercuts any suggestion that the 

Legislature intended to create special rules for plea cases involving serious felony 

enhancements.” (Ibid.) Accordingly, the Stamps court held the defendant on remand 

could seek the court’s exercise of discretion under the amended law, but if the court 

chooses to strike the enhancement, its decision could have consequences to the plea 

agreement. (See Stamps, at pp. 705–708.)

There is currently a split of authority regarding whether the People may withdraw 

from a plea agreement if the trial court exercises its discretion to further reduce a 

defendant’s sentence beyond striking now invalid prior prison term enhancements at a

section 1172.75 resentencing. In People v. Coddington (2023) 96 Cal.App.5th 562, the 

trial court granted the defendant’s request to strike his prior prison term enhancement 

under section 1172.75 after he was convicted pursuant to a plea agreement. (Coddington,

at pp. 565, 567.) On appeal, the First District Court of Appeal, Division One, held under 

section 1172.75 and the full resentencing rule, the defendant was entitled to a remand and 

to seek further reductions of his prison term under recent legislation affecting other 

aspects of his conviction. (96 Cal.App.5th at pp. 568–569.) The court also held, 

although the defendant could seek additional sentencing relief on remand, if the trial 

court exercised its discretion to further reduce his sentence, the prosecution could 

withdraw its assent to the plea agreement. (Id. at pp. 565, 569, 572.) In so holding, 

Coddington determined that “[a]lthough the Legislature clearly intended that the striking 

of a sentencing enhancement for a prior prison term would not provide a basis for 
10.

rescinding a plea agreement, this intent cannot be understood to govern other possible 

sentence reductions merely because they happen to occur during the same resentencing.”

(Id. at p. 565.) Coddington concluded the statute’s intent to eliminate disparity of 

sentences and to promote uniformity of sentencing would be thwarted if prosecutors 

could not withdraw assent to a plea bargain for other changes reducing sentences that 

were part of a plea bargain. (Id. at p. 571.) It held, “[u]nder such an interpretation, 

prosecutors would have no Stamps remedy when a defendant is being resentenced, even 

though they would retain such a remedy for defendants being sentenced prospectively.”

(Ibid.) It further reasoned Senate Bill 483 was not “meant to overrule Stamps for all 

sentence reductions that are granted in connection with a request to eliminate prison 

priors.” (Ibid.)

In People v. Carter (2023) 97 Cal.App.5th 960, the Fourth District Court of 

Appeal, Division One, also held the trial court erred in only striking the invalid prison 

prior enhancement and failing to conduct a full resentencing pursuant to section 1172.75, 

though the defendant was originally sentenced pursuant to a plea agreement that included 

a stipulated sentence of 12 years. (Carter, at pp. 964, 972.) However, disagreeing with 

Coddington and distinguishing Stamps, Carter further held the People were “not entitled 

to withdraw their assent to the plea bargain if the trial court further reduced [the 

defendant’s] sentence on resentencing.” (Carter, at p. 964; see id. at pp. 973–976.)

The Carter court concluded, like in Harris, the statement of intent in the 

uncodified portion of Senate Bill 483 “expressly mentions plea agreements and prohibits 

both the court and the prosecution from rescinding the plea agreement based on any

change to the sentence resulting from the law.” (People v. Carter, supra, 97 Cal.App.5th 

at p. 974.) It held, “[t]he all-inclusive phrase ‘any changes to a sentence as a result of the 

act’ [Stats. 2021, ch. 728, § 1] can only be understood to include changes resulting from 

the law’s resentencing provision, which provides for full resentencing and states that it 

‘shall result in a lesser sentence’ unless it would endanger public safety and ‘shall not 
11.

result in a longer sentence than the one originally imposed.’ (§ 1172.75, subd. (d)(1).)”

(Id. at p. 973.) Carter reasoned, “[t]he statement of legislative intent in Senate Bill 483 

does not differentiate between a sentence reduced by removal of the prison-prior 

enhancement and a sentence reduced due to other resentencing decisions made by the 

trial court. Instead, it broadly refers to ‘any changes’ to the sentence resulting under the 

new law and then states that those changes do not give the prosecution a right to 

withdraw from a plea agreement. (Stats. 2021, ch. 728, § 1.).” (Ibid.) Accordingly, “the 

Legislature’s clear directive is that any reduction of the defendant’s sentence on 

resentencing shall not be a basis for the prosecutor or the court to withdraw from a plea 

agreement.” (Ibid.)

Carter further concluded the legislative history of Senate Bill 483 was consistent 

with its interpretation of the Legislature’s intent. (People v. Carter, supra, 97 

Cal.App.5th at p. 974.) It referenced the Assembly Committee on Public Safety’s 

analysis of Senate Bill 483 that included a section titled “Effect on Guilty Pleas” in which 

it stated the “‘legislative intent [is] that its provision for retroactive application and 

resentencing applies to guilty plea cases. This would include those in which there may 

have been a negotiated disposition.’” (Carter, at p. 974; see Assem. Com. on Public 

Safety, Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended July 7, 2021, at p. 

4.) Carter further explained:

“The report went on to quote the Supreme Court’s holding in Doe v. 

Harris (2013) 57 Cal.4th 64, 66, 71, 73 that ‘“plea agreements are deemed 

to incorporate the reserve power of the state to amend the law”’; the fact 

that ‘“parties enter into a plea agreement thus does not have the effect of 

insulating them from changes in the law that the Legislature has intended to 

apply to them”’; and it therefore follows ‘“that requiring the parties’

compliance with changes in the law made retroactive to them does not 

violate the terms of the plea agreement.”’ (Assem. Com. on Public Safety, 

Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended July 7, 2021, 

p. 4.) The committee’s report also confirmed the ‘Legislative intent that 

any changes to a sentence as a result of these provisions is not a basis for a 

prosecutor or [a] court to rescind a plea agreement.’ (Id. at p. 2.) Like the 
12.

uncodified statement, this language did not distinguish between the removal 

of prison priors and other potential sentence reductions.

“Several other legislative committee reports on Senate Bill 483 also 

noted the Legislature’s intent to prohibit recission of a plea agreement 

based on any change in sentence resulting from the law. (See Sen. 3d

reading on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended Sept. 1, 

2021, p. 2 [the bill ‘[s]tates Legislative intent that any changes to a sentence 

as a result of these provisions is not a basis for a prosecutor or [a] court to 

rescind a plea agreement.’]; Sen. Rules Com., Off. of Sen. Floor Analyses, 

Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended Sept. 1, 

2021, p. 4 [same].)” (People v. Carter, supra, 97 Cal.App.5th at pp. 974–

975.)

Carter noted that Coddington did not mention these legislative history reports but 

instead cited to the Legislative Counsel’s Digest for Senate Bill 483 as stating “‘that the 

legislation would declare prison priors “to be legally invalid” and would state the intent 

of the Legislature to prohibit the rescission of a plea agreement based on eliminating 

them.’ (People v. Coddington, supra, 96 Cal.App.5th at pp. 571–572, italics added.)”

(People v. Carter, supra, 97 Cal.App.5th at p. 975.) Carter explained, however, “the 

actual language of the Legislative Counsel’s Digest is broader.” (Ibid.) It provides, 

consistent with the uncodified statement of intent and legislative committee reports, 

“‘The bill would state the intent of the Legislature to prohibit a prosecutor or court from 

rescinding a plea agreement based on a change in sentence as a result of this measure.’

(Legis. Counsel’s Dig., Sen. Bill 483 (2021–2022 Reg. Sess.); Stats. 2021, ch. 728.)”

(Carter, at p. 975.) Carter also disagreed with Coddington that its holding would 

“overrule” Stamps, reasoning the statute at issue, section 1172.75, is distinct from that 

which was at issue in Stamps. (Carter, supra, at p. 976.)

Multiple courts addressing the issue have since agreed with Carter that the 

Legislature intended to preclude a prosecutor from rescinding a plea agreement due to 

any sentence reduction at a section 1172.75 hearing, and the California Supreme Court 

recently granted review to address the issue. (See People v. Montgomery (2024) 100 

Cal.App.5th 768, 775 [Ct. App., First Dist., Div. Three], review granted May 29, 2024, 
13.

S284662; accord, People v. Hernandez (2024) 103 Cal.App.5th 981, 986 [Ct. App., 

Fourth Dist., Div. Three], petn. for review pending, petn. filed Aug. 22, 2024.)

III, Analysis

Defendant asserts the court erred in refusing to conduct a full resentencing. He

contends there have been changes in the law that could apply and reduce his sentence

further, including the passage of Senate Bill Nos. 81, 567, and 1393. Accordingly, he

contends the matter must be remanded for the court to conduct a full resentencing and,

for the reasons stated in Carter and Montgomery, any additional reduction of the sentence

on resentencing shall not be a basis for the People or the court to withdraw from the plea

agreement. The People agree that “[a] prisoner whose sentence includes a now invalid

section 667.5 prior prison term enhancement is entitled to resentencing relief, whether he

or she was convicted by a jury or plea” and “to a full resentencing, and ... ‘not merely

that the trial court strike the newly “invalid” enhancements.’” They contend, “[i]f there

are other ameliorative changes in the law that may further reduce [defendant]’s sentence,

this Court should permit the prosecution to withdraw its assent to the plea agreement.”

Initially, we agree with the parties that remand is required for the court to conduct

a full resentencing. As the parties acknowledge, on its face, section 1172.75 requires a

full resentencing for prisoners whose sentences include a now invalid section 667.5 prior

prison term enhancement, and the statute draws no distinction between individuals

convicted by jury or plea. (See § 1172.75, subd. (d)(2) [requiring trial court to “apply the

sentencing rules of the Judicial Council and apply any other changes in law that reduce

sentences or provide for judicial discretion so as to eliminate disparity of sentences and to

promote uniformity of sentencing”]; see also People v. Monroe (2022) 85 Cal.App.5th

393, 402 [“By its plain terms, section 1172.75 requires a full resentencing, not merely

that the trial court strike the newly ‘invalid’ enhancements”].) And, because the trial 

court was not aware of the scope of its discretionary powers, and the record does not 
14.

clearly indicate the court would have reached the same conclusion had it been aware of 

its discretion, a remand for resentencing is appropriate. (See People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391 [“‘Defendants are entitled to sentencing decisions made in the 

exercise of the “informed discretion” of the sentencing court. [Citations.] A court which 

is unaware of the scope of its discretionary powers can no more exercise that “informed 

discretion” than one whose sentence is or may have been based on misinformation 

regarding a material aspect of a defendant’s record.’ [Citation.] In such circumstances, 

... the appropriate remedy is to remand for resentencing unless the record ‘clearly 

indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had 

been aware that it had such discretion’”].)

With regard to the parties contentions regarding whether the People should be able 

to withdraw from the plea agreement if defendant’s sentence is further reduced on 

remand, we note, “[a]s a general rule, we do not issue advisory opinions indicating 

‘“what the law would be upon a hypothetical state of facts.”’” (People v. Slayton (2001) 

26 Cal.4th 1076, 1084.) And any opinion as to whether the People may withdraw from 

the plea agreement at this juncture would be purely advisory as it is conditioned upon 

whether the trial court hypothetically further reduces defendant’s sentence on remand.

(See People v. Chadd (1981) 28 Cal.3d 739, 746 [“We will not ... adjudicate 

hypothetical claims or render purely advisory opinions”].) Accordingly, we decline to 

address the parties’ contentions on this issue. We further note, as discussed, the high 

court is poised to resolve this issue in People v. Montgomery, supra, 100 Cal.App.5th 

768, review granted.

DISPOSITION

The court’s May 24, 2023, order is vacated and the matter is remanded for a new 

resentencing hearing that complies with section 1172.75.