1

Filed 1/29/21 P. v. Castorena CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR ANTHONY CASTORENA,

Defendant and Appellant.

E074517, E075013

(Super.Ct.No. SWF1601174)

OPINION

CONSOLIDATED APPEALS from the Superior Court of Riverside County, 

Stephen J. Gallon, Judge. Affirmed as modified.

Jeffrey S. Kross, 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, Michael Pulos, and Joy Utomi, 

Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Victor Anthony Castorena appeals from the trial court’s 

order sentencing defendant on October 1, 2019 (case No. E075013), and the trial court’s 

order denying defendant’s motion to recall his sentence (case No. E074517). On August 
2

6, 2020, we granted defendant’s unopposed motion to consolidate the appeals with case 

No. E074517 being designated the master file. We have also granted defendant’s motion 

for calendar preference.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On July 21, 2016, in case No. SWF1601174 (current case) defendant pled guilty in

Riverside County to felony theft, driving or taking a vehicle with a prior theft-related 

conviction under Penal Code1section 666.5, subdivision (a) (count 1); and misdemeanor 

resisting arrest under section 148, subdivision (a) (count 3). Defendant also admitted five 

prison priors under section 667.5, subdivision (b). Thereafter, the trial court sentenced 

defendant to a split sentence of eight years as follows: four years in custody and four 

years under mandatory supervision. The sentence consisted of the midterm of three years 

in county jail for count 1, a concurrent 180-day jail term for count 3, and five consecutive 

one-year terms for the section 667.5, subdivision (b), prison priors. Defendant did not 

appeal the judgment.

On February 11, 2019, defendant admitted to violating his mandatory supervision. 

The court reinstated mandatory supervision and ordered defendant to serve 232 days in 

jail with an additional 1,129 days of mandatory supervision. On August 22, 2019, 

defendant admitted another violation of mandatory supervision.

1

 All statutory references are to the Penal Code unless otherwise specified.
3

On October 1, 2019, in an unrelated case, case No. 1907524, defendant pled guilty 

to receiving a stolen vehicle with a qualifying prior. The court sentenced defendant to 

one year in county jail in the unrelated case. At the same hearing, defendant admitted a 

new violation of his mandatory supervision in the current case. Therefore, the court 

terminated defendant’s mandatory supervision and imposed 971 days to be served in jail. 

The sentence in the unrelated case was ordered to run consecutive to the sentence in the 

current case.

On January 6, 2020, defendant filed a request to recall his sentence pursuant to the 

change in law affecting section 667.5, subdivision (b), prison priors. On January 10, 

2020, the court denied defendant’s request because the sentence occurred “outside of the 

period when those prison priors would come into question.”

On January 13, 2020, defendant filed a timely notice of appeal on the denial of his 

request to recall his sentence under section 667.5, subdivision (b), in case No. E074517 

(first appeal). 

On February 18, 2020, in a separate proceeding (case No. E074703), defendant 

filed “a petition for writ of habeas corpus to establish the constructive timely filing of a 

notice of appeal on petitioner’s behalf.” On June 2, 2020, we granted the petition “and 

the notice of appeal received by the trial court clerk on January 24, 2020, from the 

judgment entered on October 1, 2019, [was] CONSTRUED to have been timely filed.” 

The appeal was designated case No. E075013.

On July 6, 2020, defense counsel filed a motion to consolidate the two appeals, 

case No. E074517 (first appeal) and case No. E075013 (second appeal). Counsel stated 
4

that both appeals “arose from the same proceedings below and both seek the retroactive 

application of the ameliorative benefits of Senate Bill No. 136 [(Sen. No. 136)] to his 

non-final judgment in Riverside County Superior Court case number SWF 1601174.” On 

August 7, 2020, we granted defendant’s motion to consolidate and consolidated the 

appeals, with case No. E074517 designated as the master file. In sum, the first appeal is a 

direct appeal from the trial court’s ruling on January 10, 2020. On January 24, 2020, 

defendant filed the second appeal, an untimely notice of appeal from the October 1, 2019, 

judgment. On February 18, 2020, defendant filed a petition for writ of habeas to have the 

notice of appeal deemed constructively filed earlier. On April 17, 2020, we ordered 

defendant’s notice of appeal to have been constructively filed timely from the October 1, 

2019, judgment—the second appeal. The issue in both appeals is identical: Whether 

Sen. No. 136 applies retroactively to defendant’s judgment in the trial court. For the 

reasons set forth post, we find that Sen. No. 136 applies retroactively and the five, oneyear enhancements imposed pursuant to section 667.5, subdivision (b), should be 

stricken.

B. FACTUAL HISTORY

At the plea hearing, defendant admitted that he unlawfully drove a 2007 Ford 

vehicle without the owner’s permission and with the intent to permanently deprive the 

owner of the vehicle.

DISCUSSION

In both appeals, defendant contends that under Sen. No. 136, his “case should be 

remanded for resentencing with directions that the court strike his section 667.5, 
5

subdivision (b) enhancements.” (Caps. & boldface omitted.) The People argue that, 

although defendant’s claim is cognizable on appeal, “he is not entitled to relief under 

[Sen. No. 136] because his judgment was final before the measure took effect.” We 

agree with both parties that defendant’s claim is cognizable on appeal. The issue on 

appeal, therefore, is whether defendant is entitled to relief under Sen. No. 136.

Here, as provided ante, the trial court imposed a split sentence on defendant in 

July 2016. Defendant admitted violating the terms of his mandatory supervision in 

February and August 2019. Then on January 6, 2020, after Sen. No. 136 went into effect, 

defense counsel filed a request to recall defendant’s sentence. The court denied the

request.

“This case involves the intersection of the Criminal Justice Realignment Act

[(Realignment Act)] and the retroactive application of ameliorative statutes pursuant to In 

re Estrada (1965) 63 Cal.2d 740 . . . (Estrada). Under the Realignment Act, a trial court 

has discretion to impose a ‘split sentence’ consisting of a term in county jail followed by 

a period of mandatory supervision. The court fashions a split sentence by suspending 

execution of the latter portion of the defendant’s sentence and releasing them subject to 

the probation department’s supervision. If the defendant violates the terms of 

supervision, the court may revoke it and order execution of the suspended portion of the 
6

sentence.” (People v. Martinez (2020) 54 Cal.App. 5th 885, 889 (Martinez), review 

granted Nov. 10, 2020, S264848.2) 

Recently, on November 13, 2020, the sixth appellate district addressed an almost

identical issue as in this case: “Does suspending execution of sentence to place a 

defendant on mandatory supervision constitute a final judgment for purposes of 

retroactively applying an ameliorative statutory amendment?” (People v. Lopez (2020) 

57 Cal.App.5th 409, 413 (Lopez).) In Lopez, the court concluded that “there is no final 

judgment in that situation because sentencing is not actually complete. In other words, a 

defendant who remains on mandatory supervision is not yet subject to a final judgment.” 

(Ibid.) We agree with Lopez.

In Lopez, the defendant pled guilty to transporting a controlled substance under 

Health and Safety Code section 11352, subdivision (a), in 2011. The court granted 

probation, which the defendant violated in 2014. As a result of the probation violation, 

the trial court terminated probation and imposed an eight-month sentence. Thereafter, 

under Penal Code section 1170, subdivision (h)(5)(B), the trial court suspended execution 

of the sentence and placed the defendant on mandatory supervision. (Lopez, supra, 57 

Cal.App.5th at p. 412.)

2

 Cases involving when a judgment becomes final for purposes of Estrada

retroactivity where probation is granted and execution of sentence is suspended are 

before the California Supreme Court. (People v. Esquivel (Mar. 26, 2020, B294024) 

2020 Cal.App.Unpub. LEXIS 1977 [nonpub. opn.], review granted August 12, 2020, 

S262551; and Martinez, supra, 54 Cal.App.5th 885.)
7

In February 2016, the defendant violated the terms of mandatory supervision. The 

court increased the sentence to two years but again suspended execution to reinstate 

mandatory supervision for the entire term. In October 2016, the defendant violated 

mandatory supervision by testing positive for marijuana and failing to report to probation. 

(Lopez, supra, 57 Cal.App.5th at p. 412.)

In 2018, the defendant appeared before the court via a bench warrant. At that 

time, he moved to vacate his conviction based on an amendment to the Health and Safety 

Code after the time he pled guilty: Health and Safety Code section 11352 was amended 

to make transportation of a controlled substance a felony only where the transportation 

was for the purpose of sale, not personal use. The trial court denied the defendant’s 

request “finding the statutory amendment inapplicable because defendant’s judgment was 

final.” (Lopez, supra, 57 Cal.App.5th at p. 412.)

On appeal, the Sixth District stated that “[s]ince defendant’s conviction is based 

on conduct that occurred in 2011, well before the amendment’s January 1, 2014 effective 

date, the amended statute applies here only if it can be applied retroactively. When a 

statute is amended to reduce the punishment for a criminal act, it is presumed that the 

Legislature intended the lighter penalty to apply retroactively ‘to every case to which it 

constitutionally could apply.’ [Citation.] A statute can be constitutionally applied to acts 

committed before its passage so long as the judgment of conviction is not final. 

[Citation.] A judgment becomes final when it has reached final disposition in the highest 

court authorized to review it.” (Lopez, supra, 57 Cal.App.5th at p. 413.)
8

The Lopez court recognized that in criminal actions, “the terms ‘judgment’ and 

‘sentence’ are synonymous. [Citation.] There can be no judgment without a sentence.” 

(Lopez, supra, 57 Cal.App.5th at p. 413.) The court then went on to state that “[a] grant 

of probation is not a sentence and final judgment for purposes of retroactivity: in a case 

where the court suspends imposition of sentence to place the defendant on probation, 

there is no final judgment. And where the court imposes sentence but suspends its 

execution, that sentence constitutes only a provisional or conditional judgment, the 

finality of which depends on the outcome of the probationary period.” (Lopez, supra, 57 

Cal.App.5th at p. 414.)

The facts in this case are similar to the facts in Lopez. Here, the trial court 

imposed a split sentence after defendant pled guilty. Three years later, in 2019, 

defendant admitted violating his mandatory supervision. The court ordered defendant to 

serve time in jail and imposed an additional 1,129 days under mandatory supervision. 

When defendant again violated his mandatory supervision three months later, the court 

then sentenced defendant the balance of 971 days of mandatory supervision to be served 

in county jail. On appeal, defendant contends that an ameliorative statute that was not in 

effect at the time he pled guilty—Sen. No. 136—should be given retroactive effect since 

the imposition of the split sentence in 2016 was not a final judgment for purposes of 

Estrada retroactivity. We agree with the Lopez court that defendant’s sentence was not 

yet final.

Similar to this case, in Lopez, “the trial court imposed sentence and suspended its 

execution to place defendant on mandatory supervision. Mandatory supervision, a 
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creature of the Criminal Justice Realignment Act of 2011 [citation], is governed by Penal 

Code sections 1170, subdivision (h)(5) and 1203.3, subdivision (a). [Citation.] Section 

1170, subdivision (h)(5)(A) directs that when imposing sentence in eligible cases, the 

trial court ‘shall suspend execution of a concluding portion of the term for a period 

selected at the court’s discretion,’ the mandatory supervision period. At the same time—

and significantly—section 1203.3, subdivision (a) expressly confers on the trial court the 

‘authority at any time during the term of mandatory supervision . . . to revoke, modify, or 

change the conditions of the court’s order suspending the execution of the concluding 

portion of the supervised person’s term.’ Although the statutory scheme uses the 

language ‘suspending execution of sentence,’ the court retains complete discretion to 

modify the previously imposed sentence.” (Lopez, supra, 57 Cal.App.5th at p. 414.) 

The Lopez court went on to state that the trial court understood the extent of its 

discretion because it modified the defendant’s sentence twice after mandatory supervision 

violations. Here, as noted ante, the trial court understood its discretion because it also 

modified defendant’s sentence twice after mandatory supervision violations. “That 

flexibility is expressly contemplated in the statutes that created mandatory supervision. It 

is also inconsistent with the proposition that there was a final judgment, which could not 

be altered.” (Lopez, supra, 57 Cal.App.5th at p. 414.)

We agree with the Lopez court that “[w]e see the trial court’s preserved discretion 

as dispositive. Given the court’s complete authority to ‘revoke, modify, or change’ its 

previous sentence [citation], the sentencing process cannot fairly be described as finished 

when execution of a sentence is suspended to place a defendant on mandatory 
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supervision. To the extent there is a judgment at that point, it is provisional or 

conditional in nature and therefore does not prevent retroactive application of an 

ameliorative statute.” (Lopez, supra, 57 Cal.App.5th at p. 414.) Therefore, as of January 

1, 2020, the effective date of Sen. No. 136, the judgment in defendant’s case was not 

final. 

Moreover, we note that in Lopez, the court recognized the second appellate district 

addressed a similar issue in Martinez, supra, 54 Cal.App.5th 885. In Martinez, “the 

defendant was entitled to retroactive application of an ameliorative statute on appeal from 

an order revoking mandatory supervision and executing a prison sentence. Focusing on 

the issue of finality, the Martinez court reasoned that a judgment exists when mandatory 

supervision is revoked and a prison sentence executed, but the judgment becomes final 

only when appellate review of the revocation is complete. [Citation.] In that case the 

same result [was] obtained: An ameliorative statute was applied retroactively when 

constitutionally permissible.” (Lopez, supra, 57 Cal.App.5th at p. 415, italics added.)

In reaching its decision, the Martinez court relied on People v. McKenzie (2020) 9 

Cal.5th 40 (McKenzie), a recent Supreme Court decision. In McKenzie, the defendant 

pleaded guilty to certain drug-related offenses and admitted previous felony drug-related 

convictions for purposes of sentence enhancements pursuant to former Health and Safety 

Code section 11370.2. (McKenzie, at p. 43.) The trial court suspended imposition of 

sentence and granted the defendant five years of probation. (Ibid.) After the defendant 

violated the terms of his probation, the trial court revoked probation and imposed a prison 

sentence, including the Health and Safety Code section 11370.2 enhancements. The 
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defendant appealed but before the appeal was resolved, “the governor signed Senate Bill

No. 180.” (McKenzie, at p. 43.) The Supreme Court granted review to decide whether 

the defendant was entitled to the retroactive benefit of Senate Bill No. 180 and concluded 

that he was. (Id. at pp. 44-45.) In so doing, McKenzie rejected the argument that the 

original order granting probation was a “final judgment” for the purposes of Estrada.

“Initially, the People err by assuming that when we used the phrase ‘judgment of 

conviction’ in Estrada, supra, 63 Cal.2d at page 744, . . ., we were referring only to 

‘underlying’ convictions and enhancement findings, exclusive of sentence. In criminal 

actions, the terms ‘judgment’ and ‘ “sentence” ’ are generally considered ‘synonymous’ 

[citation], and there is no ‘judgment of conviction’ without a sentence [citation]. 

Moreover, in Estrada, we also referred to the cut-off point for application of ameliorative 

amendments as the date when the ‘case[]’ [citation] or ‘prosecution[]’ is ‘reduced to final 

judgment’ [citation]. And in [People v.] Rossi [(1976)] 18 Cal.3rd [295,] 304, we stated 

that an amendatory statute applies in ‘ “any [criminal] proceeding [that], at the time of 

the supervening legislation, has not yet reached final disposition in the highest court 

authorized to review it.’ ” . . . It cannot be said that this criminal prosecution or 

proceeding concluded before the ameliorative legislation took effect.” (McKenzie, supra, 

9 Cal.5th at p. 46.) 

McKenzie went on to explain that its conclusion was consistent with People v. 

Chavez (2018) 4 Cal.5th 771 (Chavez), which held that the trial court could no longer 

dismiss a criminal action in furtherance of justice under section 1385 after the defendant 

had successfully completed probation. In particular, McKenzie relied on the following 
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discussion from Chavez: “Given that a grant of probation is not a final judgment, when—

if ever, for purposes of section 1385—does a judgment become final for a defendant who 

is granted and completes probation?”

“The answer lies in the probation statutes and our cases interpreting them. Section 

1203, subdivision (a) defines ‘probation’ as ‘the suspension of the imposition or 

execution of a sentence and the order of conditional and revocable release in the 

community under the supervision of a probation officer.’ Going as far back as Stephens 

v. Toomey (1959) 51 Cal.2d 864, we have explained that neither forms of probation—

suspension of the imposition of sentence or suspension of the execution of sentence—

results in a final judgment. In a case where a court suspends imposition of sentence, it 

pronounces no judgment at all, and a defendant is placed on probation with ‘no judgment 

pending against [him].’ [Citation.] In the case where the court suspends execution of 

sentence, the sentence constitutes ‘a judgment provisional or conditional in nature.’ 

[Citation.] The finality of the sentence ‘depends on the outcome of the probationary 

proceeding’ and ‘is not a final judgment’ at the imposition of sentence and order to 

probation. [Citation.] Instead of a final judgment, the grant of probation opens the door 

to two separate phases for the probationer: the period of probation and the time 

thereafter.” (Chavez, supra, 4 Cal.5th at p. 781; see McKenzie, supra, 9 Cal.5th at pp. 

47-48.) 

The Martinez court recognized that McKenzie involved probation, not mandatory 

supervision. However, the court stated, “we see no reason to depart from its principles in 

a case involving mandatory supervision. Mandatory supervision is ‘akin to probation.’ 
13

[Citation.] During the supervision period, the defendant is ‘supervised by the county 

probation officer in accordance with the terms, conditions, and procedures generally 

applicable to persons placed on probation,’ including those used to revoke or modify the 

terms of supervision. [Citations.] The applicability of these procedures and the myriad 

outcomes they permit demonstrate that mandatory supervision, like probation, is 

conditional or provisional in nature.” (Martinez, supra, 54 Cal.App.5th at p. 893.)

The People attempt to distinguish the Supreme Court decision in McKenzie from 

the case at hand because the defendant in McKenzie “was placed on probation with a 

suspended imposition of sentence. [Citation.] The court emphasized that finality 

includes both the conviction and the sentence. [Citation.] Since the defendant had not

been sentenced when probation was imposed, there was no final judgment at the time. 

[Citation.] Therefore, the California Supreme Court concluded that the defendant’s 

judgment was not final for purposes of Estrada on the grounds that the time for 

petitioning for certiorari had not lapsed at the time that the ameliorative sentencing 

provisions were enacted.” The court in Martinez addressed this exact argument and 

disagreed.

“That McKenzie considered a case where imposition of sentence was suspended, 

while mandatory supervision involves suspension of the execution of sentence, does not 

change our conclusion. McKenzie relied heavily on Chavez, which explained the 

differences between the two forms of probation. The Chavez court stated that ‘[i]n the 

case where the court suspends execution of sentence, the . . . finality of the sentence 

“depends on the outcome of the probationary proceeding” and “is not a final judgment.” ’ 
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[Citation.] Instead, ‘the grant of probation opens the door to two separate phases for the 

probationer: the period of probation and the time thereafter.’ [Citation.] During the 

former, ‘the court retains the power to revoke probation and sentence the defendant to 

imprisonment.’ [Citation.] If the court exercises that power—as it did in the proceedings 

below—the judgment then has ‘full force and effect.’ [Citation.] It will become final 

once the means for setting it aside on direct appeal have been exhausted.” (Martinez, 

supra, 54 Cal.App.5th at p. 893.) We agree with Martinez that McKenzie’s logic applies 

to the split sentence at issue in this case. 

Moreover, the First District recently explained the following: “Based on Chavez, 

cited with approval in McKenzie, we conclude the split sentence ‘constitutes “a judgment 

provisional or conditional in nature.” [Citation.] The finality of the sentence “depends 

on the outcome of the [mandatory supervision period] . . .” and “is not a final judgment” 

at the imposition of’ the split sentence. [Citation.] ‘Instead of a final judgment,’ the split 

sentence ‘opens the door to two separate phases’ for defendant, the time spent in the 

county jail and the period of mandatory supervision. [Citation.] During mandatory 

supervision, ‘the court retains the power to’ revoke or modify the mandatory supervision 

and sentence defendant to imprisonment in the county jail. [Citation.] Therefore, ‘the 

“criminal action”—and thus the trial court’s jurisdiction to impose a final judgment—

“continues into and throughout the period of [mandatory supervision]” and expires only 

“when th[e] [mandatory supervision] period ends.” ’ [Citation.] Accordingly, defendant 

is entitled to retroactive application of the new law as ‘[i]t cannot be said that this 
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criminal prosecution or proceeding concluded before the ameliorative legislation took 

effect.’ ” (People v. Conatser (2020) 53 Cal.App.5th 1223, 1229.)3

“We conclude by noting our decision is consistent with ‘the “inevitable inference” 

that the Legislature, having “determined that its former penalty was too severe,” “must 

have intended” that the ameliorative statutory change “should apply to every case to 

which it constitutionally could apply.” [Citation.] A contrary conclusion . . . would 

“serve no purpose other than to satisfy a desire for vengeance,” and would have to rest on 

the impermissible view “that the Legislature was motivated by [such] a desire.” 

[Citation.] Thus, applying those revisions in this case is fully consistent with Estrada.’ 

(McKenzie, supra, 9 Cal.5th at p. 48; see People v. Collins (1978) 21 Cal.3rd 208, 213 

[(Collins)] [‘an amendment eliminating criminal sanctions is [itself] a sufficient 

declaration of the Legislature’s intent to bar all punishment for the conduct so 

decriminalized.’].)” (People v. Conatser, supra, 53 Cal.App.5th at p. 1229.)

Finally, defendant asks that we remand this case to the trial court to strike the 

enhancements under section 667.5, subdivision (b). The People, however, argue that if 

defendant’s enhancements are ordered stricken to reduce the sentence, “the matter should 

3

 We acknowledge that the First District, Division One in People v. Grzymski 

(2018) 28 Cal.App.5th 799, review granted Feb. 13, 2019 (S252911) reached a different 

conclusion. Grzymski held that “an unappealed split sentence is final within the meaning 

of Estrada 60 days after it is imposed,” and a defendant appealing a later revocation of 

mandatory supervision is not entitled to the benefits of subsequently enacted ameliorative 

legislation. (Id. at p. 802.) On May 27, 2020, however, the Supreme Court transferred 

Grzymski to the appellate court with directions to vacate its decision and to reconsider the 

cause in light of McKenzie. 
16

be remanded to permit the district attorney to either accept a reduction of the sentence or 

withdraw from the plea agreement.” We disagree with the People.

In People v. Matthews (2020) 47 Cal.App.5th 857, 866, the court stated that “[a] 

plea agreement is a binding contract. ‘[T]he process of plea negotiation “contemplates an 

agreement negotiated by the People and the defendant and approved by the court.” 

Accordingly, because a plea agreement is a contract, “it is interpreted according to 

general contract principles. [Citation.] Acceptance of the agreement binds the court and 

the parties to the agreement.” (Ibid.) The court went on to state that “ ‘as a general rule, 

. . . requiring the parties’ compliance with changes in the law made retroactive to them 

does not violate the terms of the plea agreement, nor does the failure of a plea agreement 

to reference the possibility the law might change translate into an implied promise the 

defendant will be unaffected by a change in the statutory consequences attending his or 

her conviction. To that extent, then, the terms of the plea agreement can be affected by 

changes in the law.’ [Citations.] ‘If parties to a plea agreement want to insulate the 

agreement from future changes in the law they should specify that the consequences of 

the plea will remain fixed despite amendments to the relevant law.’ ” (Id. at p. 867.) In 

this case, the parties made no insulating specifications that the consequences of the plea 

will remain fixed despite amendments to section 667.5. 

The Matthews court then went on to observe that the legislative purposes of Sen. 

No. 136—to eliminate overly expensive and punitive sentences, which tend to increase 

risk of recidivism; to keep families together; and to promote evidence-based 

rehabilitation—would be frustrated if trial courts were allowed to unilaterally alter plea 
17

agreements after striking enhancement sentences under Sen. No. 136. (Matthews, supra, 

47 Cal.App.5th at p. 868-869.) Therefore, the court concluded that when a defendant 

agrees to specific terms in a negotiated disposition in a case wherein section 667.5, 

subdivision (b), enhancements are invalidated under Sen. No. 136, a trial court must 

strike the prison-prior terms and not reconsider other aspects of the terms of the plea 

agreement. (Id. at p. 869.)

The result in Matthews is consistent with the Sixth District Court of Appeal case 

People v. Petri (2020) 45 Cal.App.5th 82. In Petri, the defendant admitted a prior prison 

term under section 667.5, subdivision (b), and he agreed to a stipulated sentence. (Petri, 

at pp. 85-86.) The court ordered the enhancement stricken because Sen. No. 136 was 

retroactive, the defendant’s prior prison term was not for a sexually violent offense, and 

his case was not final. (Id. at pp. 93-95.) The prosecution in Petri conceded the 

enhancement should be stricken.

In this case, defendant is like the defendants in Matthews and Petri in all respects: 

Defendant negotiated a deal with enhancements under section 667.5, subdivision (b), 

before Sen. No. 136; defendant’s prior prison terms were not for sexually violent 

offenses; and defendant’s case is not final.

Yet the People say we should reach a different result. The People rely on People 

v. Stamps (2020) 9 Cal.5th 685 (Stamps). Stamps, however, is inapplicable to this case. 

The issue in Stamps involved the retroactive application of Senate Bill No. 1393—

affording trial courts new discretion to strike prior serious felony enhancements in the 

interests of justice. Under those circumstances, the Supreme Court found that the proper 
18

remedy in cases in which a defendant sought relief under Senate Bill No. 1393 was to 

remand the matter to the trial court in order that the defendant could seek the benefit. If 

the court were inclined to exercise its discretion to strike the enhancement, the prosecutor 

could agree to the downward modification of the sentence. However, if the prosecutor 

did not agree to the modification, the prosecutor could withdraw the plea agreement. 

Likewise, the trial court could withdraw its approval of the plea agreement. (Id. at pp. 

693, 704-708.)

In fact, the People argue that “when a new ameliorative law, applicable under 

Estrada, invalidates an element of a negotiated plea after it has been accepted, the 

remedy generally is not to permit the court to unilaterally alter the terms of the bargain in 

the defendant’s favor, but to remand to permit the district attorney to withdraw from the 

agreement (or to agree to the alteration). (See Stamps, [supra, 9 Cal.5th] at pp. 703-704 

[discussing . . . Collins[, supra,] 21 Cal.3d 208, where crime to which defendant pleaded 

guilty was subsequently abolished].)”

Collins, the case upon which the Supreme Court in Stamps relied, has facts that are 

substantially different than the facts in this case. In Collins, the prosecution agreed to 

dismiss 14 of 15 felony counts for the defendant’s guilty plea to one remaining count. 

(Collins, supra, 21 Cal.3d at p. 211.) Before sentencing, an amendment decriminalized 

the single remaining offense. (Id. at p. 215.) The court explained, “When a defendant 

gains total relief from his vulnerability to sentence, the state is substantially deprived of 

the benefits for which it agreed to enter the bargain.” (Ibid., italics added.) In contrast, 

defendant does not seek to invalidate his conviction or to eliminate his punishment. 
19

Although the facts in Stamps and Collins are distinguishable from the facts in this case, 

the facts are almost identical to that in Matthews and Petri, as discussed ante. The 

People, however, did not discuss Matthews or Petri in their briefs. 

Notwithstanding the People’s argument, we reiterate that Stamps involved Senate 

Bill No. 1393, which gave trial courts discretion to dismiss enhancements that had 

previously been mandatory. Stamps made no reference to Sen. No. 136 or to Matthews. 

The remedy reasoning in Stamps centered around whether or not the Legislature intended 

to overturn long-standing law preventing a court from unilaterally modifying an agreedupon term by using its discretion to strike enhancements. Stamps therefore addressed a 

different issue from the issue facing Sen. No. 136 cases and therefore does not alter our 

result.

Therefore, we reject the People’s argument that this case should be remanded to 

allow the prosecutor “to either accept a reduction of the sentence or withdraw from the 

plea agreement.” In Harris v. Superior Court (2016) 1 Cal.5th 984 pages 991 through 

992, a statute changed the defendant’s felony to a misdemeanor and the Supreme Court 

rejected the prosecution’s request to reinstate the original charges. (Ibid.) The court 

focused on “whether the electorate intended the change to apply to the parties to this plea 

agreement.” (Id. at p. 991.) The Harris court determined allowing the prosecution to 

withdraw and reinstate the original charges would make resentencing under the new law 

meaningless. It would also thwart a primary purpose of the new law, which was to 

reduce the number of nonviolent offenders in state prisons. (Id. at pp. 991-992.) The 

same reasoning applies to Sen. No. 136. 
20

DISPOSITION

The judgment is modified by striking the five, one-year enhancements imposed 

pursuant to Penal Code section 667.5, subdivision (b). The trial court is directed to 

forward a certified copy of the amended abstract to the appropriate authorities. (People v. 

Quinonez (2020) 46 Cal.App.5th 457, 467.) In all other respects, the judgment is 

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.