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Filed 12/4/20; Opinion on transfer from Supreme Court

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY ALLAN JOAQUIN,

Defendant and Appellant.

 A152786

 (Mendocino County

 Super. Ct. No. 

 SCUKCRCR1789461001)

Jeffrey Allan Joaquin (Appellant) appeals from a judgment sentencing 

him to 12 years in prison after he pled no contest to attempted murder and 

admitted allegations that he had personally used a firearm and had 

previously served a prison term. (Pen. Code, §§ 187, subd. (a), 664, 667.5, 

subd. (b), 12022.5, subd. (a).)1 He contends the case must be remanded for 

resentencing because the Legislature subsequently passed Senate Bill 

No. 620 (Senate Bill 620) (Reg. Sess. 2017-2018), which amended section 

12022.5 to give trial courts discretion to strike firearm use enhancements in 

the interests of justice. (§ 12022.5, subd. (c), Stats. 2017, ch. 682, § 2.)

We need not address that claim because Appellant’s plea agreement

has been rendered unenforceable by Senate Bill No. 136 (Senate Bill 136)

1 All undesignated statutory references are to the Penal Code.
2

(Reg. Sess. 2019-2020), effective January 1, 2020.

2 Pursuant to that 

enactment, the prior prison term enhancement is inapplicable to Appellant. 

We direct the trial court to strike the one-year prior prison term

enhancement imposed under section 667.5, subdivision (b), which has the 

effect of releasing the parties from the agreement. On remand, the parties 

may enter into a new plea agreement, but, if they do, the trial court may not 

impose a longer sentence than that in the original agreement.3

BACKGROUND

On March 21, 2017, appellant fired a shotgun at the victim from a 

distance of about 60 feet. He was charged by felony complaint with three 

counts: premeditated attempted murder with an allegation that he personally 

and intentionally discharged a firearm (§§ 187, subd. (a), 664, 12022.53, 

subd. (c)), possessing a firearm having been previously convicted of a felony 

(§ 29800, subd. (a)(1)), and assault with a firearm (§ 245, subd. (a)(2)). The 

complaint also included a firearm use allegation and a prior prison term 

allegation. (§§ 12022.5, subd. (a), 667.5, subd. (b).) The prior prison term 

was based on a conviction for infliction of corporal injury on a spouse or 

cohabitant (§ 273.5).

2 We requested supplemental briefs from the parties and both agreed that 

Appellant’s plea agreement is unenforceable in light of Senate Bill 136, even 

though Appellant did not raise that issue on appeal. (See In re Harris (1993) 

5 Cal.4th 813, 842 [“An appellate court may ‘correct a sentence that is not 

authorized by law whenever the error comes to the attention of the court.’ ”].)

3 This court previously filed a decision in this appeal on June 25, 2019. On 

September 11, 2019, the California Supreme Court granted respondent’s 

petition for review, and, on October 14, 2020, the Supreme Court transferred 

the matter to this court with directions to reconsider the cause in light of the 

decision in People v. Stamps (2020) 9 Cal.5th 685 (Stamps). (See Cal. Rules 

of Court, Rule 8.528(d).) As explained herein, Stamps makes clear that 

Senate Bill 136, which became effective after the Supreme Court’s grant of 

review, renders Appellant’s plea agreement unenforceable.
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Appellant entered into a plea agreement that called for him to plead no 

contest to attempted murder without premeditation and to admit a firearm 

use allegation under section 12022.5, subdivision (a) and a prior prison term

under section 667.5, subdivision (b). The parties stipulated to a sentence of 

12 years: the seven-year middle term for unpremeditated attempted murder, 

the four-year middle term for the firearm use allegation, and one year for the 

prior prison term. The trial court accepted the plea in August 2017 and 

imposed the 12-year sentence at a September sentencing hearing. At a 

subsequent hearing, the court recalculated Appellant’s presentence credits to 

comply with section 2933.1. This appeal followed.4

DISCUSSION

Under the version of the statute in effect when Appellant was 

sentenced, section 667.5, subdivision (b) required a one-year enhancement for 

each prior prison term served for “any felony,” with an exception not 

applicable here. (Stats. 2014, ch. 442, § 10.) Senate Bill 136 substantially 

narrowed the enhancement, limiting its application only to a prior prison 

term served “for a sexually violent offense as defined in subdivision (b) of 

Section 6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); Stats. 

2019, ch. 590, § 1; see also People v. Hernandez (2020) 55 Cal.App.5th 942, 

946-947 (Hernandez).)5 The prior prison term at issue in the present case 

was imposed for infliction of corporal injury on a spouse or cohabitant (§

4 By a separate order we denied Appellant’s companion petition for writ of 

habeas corpus. (In re Jeffrey Allan Joaquin, A156067 [nonpub. order].)

5 Section 667.5, subdivision (b) provides in relevant part, “[W]here the new 

offense is any felony for which a prison sentence . . . is imposed . . . , in 

addition and consecutive to any other sentence therefor, the court shall 

impose a one-year term for each prior separate prison term for a sexually 

violent offense as defined in subdivision (b) of Section 6600 of the Welfare 

and Institutions Code . . . .”
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273.5), which is not a qualifying offense under the current version of section 

667.5, subdivision (b). Senate Bill 136 applies retroactively to non-final 

judgments. (Hernandez, at p. 947)

In People v. Griffin (Nov. 30, 2020) ___ Cal.App.5th ___ [2020 Cal.App.

LEXIS 1138] (Griffin), this court applied the reasoning of the Stamps

decision in the context of Senate Bill 136. This court first held that the 

section 667.5, subdivision (b) enhancement imposed under the plea 

agreement in the case had to be stricken, but that doing so would render the 

remainder of the agreement unenforceable. (Griffin, at p. __ [2020 Cal.App.

LEXIS 1138, 4]; see also Hernandez, supra, 55 Cal.App.5th at pp. 948–949

[reaching same conclusion].) Consistent with Stamps, we concluded that the 

legislative history to Senate Bill 136 did not demonstrate the Legislature 

intended to authorize the trial court to “ ‘exercise its discretion to strike the 

enhancement but otherwise maintain the plea bargain.’ ” (Griffin, at p. ___ 

[2020 Cal.App. LEXIS 1138, 6], quoting Stamps, supra, 9 Cal.5th at p. 692; 

see also Hernandez, at p. 947.)

Stamps involved an enactment that granted the trial court discretion to 

strike an enhancement, and Stamps concluded the appropriate remedy was 

to remand to provide the defendant an opportunity to ask the trial court to 

exercise its newly granted discretion; “[h]owever, if the court is inclined to 

exercise its discretion, . . . the court is not authorized to unilaterally modify 

the plea agreement by striking the serious felony enhancement but otherwise 

keeping the remainder of the bargain.” (Stamps, supra, 9 Cal.5th at p. 707.) 

Instead, “[i]f the court indicates an inclination to exercise its discretion . . . , 

the prosecution may, of course, agree to modify the bargain to reflect the 

downward departure in the sentence such exercise would entail. Barring 
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such a modification agreement, ‘the prosecutor is entitled to the same remedy 

as the defendant—withdrawal of assent to the plea agreement . . . .’ ” (Ibid.)

Applying Stamps in the context of Senate Bill 136, Griffin observed, 

“[t]here is one significant difference between Senate Bill 1393, at issue in 

Stamps, and Senate Bill 136. Senate Bill 1393 gave trial courts discretion to 

strike an enhancement, while Senate Bill 136 categorically removed 

authorization to impose the section 667.5, subdivision (b) enhancement in the 

circumstances of the present case. Thus, 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.” (Griffin, supra, ___ Cal.App.5th ___ [2020 Cal.App.

LEXIS 1138, 12].) We agreed with the following statement in People v.

Barton (2020) 52 Cal.App.5th 1145, regarding an analogous enactment: 

“[T]he parties’ plea agreement is unenforceable and the trial court cannot 

approve of the agreement in its current form. [Citation.] 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.’ ” ’ [Citations.] 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.” (Id. at p. 1159.)

The final issue this court addressed in Griffin was whether “on remand 

the trial court may impose a longer sentence than that provided in the 

original plea agreement, if the parties enter into a new agreement.” (Griffin, 

supra, ___ Cal.App.5th ___ [2020 Cal.App. LEXIS 1138, 13].) We concluded it 

would be contrary to the Legislature’s intent for the trial court to do so 

because “[t]he purpose of [Senate Bill 136] was to decrease the length of 
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sentences imposed on repeat felons by substantially narrowing the scope of 

application of the prior prison term enhancement.” (Griffin, at p. __ [2020 

Cal.App. LEXIS 1138, 14-15].) Further, the California Supreme Court’s 

decision in People v. Collins (1978) 21 Cal.3d 208 (Collins) supported “a 

conclusion that the trial court may not on remand approve a new plea 

agreement imposing a longer sentence than that in the original plea 

agreement.” (Griffin, at p. __ [2020 Cal.App. LEXIS 1138, 14].) To do 

otherwise would deny the defendant “the benefit of his bargain” where it was 

“external events . . . that have rendered the judgment insupportable.” 

(Collins, at p. 216.)

Applying the reasoning of Collins to a Senate Bill 136 remand, we 

observed in Griffin, “Rejection of Appellant’s request to leave the remainder 

of the plea bargain intact ensures he will not receive a ‘bounty in excess of 

that to which he is entitled.’ [Citation.] But it would be contrary to 

legislative intent and deprive Griffin of the benefit of his bargain were the 

trial court on remand to impose a longer sentence following Griffin’s entry of 

a guilty plea pursuant to a new agreement.” (Griffin, supra, ___ Cal.App.5th

___ [2020 Cal.App. LEXIS 1138, 16-17].)

Unlike the defendant in Griffin, Appellant was also sentenced for a 

firearm enhancement. At the time of sentencing, firearm enhancements 

under section 12022.5, subdivision (a) were mandatory and could not be 

stricken in the interests of justice. (§ 12022.5, former subd. (c), as amended

by Stats. 2011, ch. 39. § 60.) On October 11, 2017, the Governor signed 

Senate Bill 620. Effective January 1, 2018, the bill amended section 12022.5, 

subdivision (c), to state in part, “The court may, in the interest of justice 

pursuant to Section 1385 and at the time of sentencing, strike or dismiss an 

enhancement otherwise required to be imposed by this section.” (§ 12022.5, 
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subd. (c); Stats. 2017, ch. 682, § 2.) Appellant argued on appeal that this 

court should remand with directions that the trial court exercise the 

discretion granted by the enactment. Given that the plea agreement is now 

unenforceable, that request is moot. Nevertheless, because “ ‘ “the court 

must restore the parties to the status quo ante” ’ ” (Stamps, supra, 9 Cal.5th 

at p. 707), Appellant on remand may accept or reject a plea agreement 

including a firearm use enhancement under section 12022.5, subdivision (a). 

If he rejects such an agreement, he retains the opportunity to ask the trial 

court to exercise its discretion to strike the enhancement, should Appellant 

subsequently enter into an open plea or be subject to sentencing following a 

conviction at trial.

Following Griffin, we reverse the judgment and direct the trial court to 

strike the section 667.5, subdivision (b) enhancement and to give the parties 

an opportunity to negotiate a new plea agreement consistent with our ruling. 

(Griffin, supra, ___ Cal.App.5th ___ [2020 Cal.App. LEXIS 1138, 18-19].)

DISPOSITION

The judgment is reversed and remanded for further proceedings 

consistent with this opinion.
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SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BURNS, J.

(A152786)
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Superior Court of Mendocino County, No. SCUKCRCR1789461001, Hon. 

Keith Faulder, Judge.

Marylou Hillberg, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, 

Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys General, for 

Plaintiff and Respondent.