Filed 10/2/24 P. v. Cadena 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.

ROBERT ALEXANDER CADENA, Defendant and Appellant. F086068 (Super. Ct. No. F12903655)



### OPINION

THE COURT *

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

. Sanderson , Judge.

Erin J. Radekin, 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 , Louis M. Vasquez, Lewis A. Martinez, Kari Mueller and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent

.

- ooOoo

-

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

. INTRODUCTION
In 2015 , defendant Robert Alexander Cadena entered a plea agreement for a stipulated term of 18 years that included a one

- year prison prior enhancement

. After the passage of Senate Bill No. 483 (2021

– 2022 Reg. Sess.) (Senate Bill 483) , the trial court held a resentencing hearing at which it recalled defendant ’ s sentence , struck the prison prior enhancement , and resentenced defendant to a term of 17 years. At the hearing , the court concluded defendant was not entitled to a full resentencing in light of th e stipulated plea agreement. On appeal , defendant asserts the court erred in failing to conduct a full resentencing; accordingly , the matter must be remanded. 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 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 Defendant was charged with the murder of Adam Garcia ( Pen. Code, § 187 ; count
1 ) and voluntary manslaughter of Adam Garcia ( § 192 , subd. ( a) ; count 2 ). (Undesignated statutory references are to the Penal Code.) It was alleged defendant personally and intentionally discharged a firearm that caused death during the
commission of count 1 , within the meaning of section 12022.53 , subdivision ( d). It was also alleged that he suffered a 2001 robbery conviction ( § 211 ) that qualified as a strike prior ( §§ 667 , subd s

. ( b)

– (i) , 1170 .12 , subd s

. ( a )

– ( d ) ) and a prior serious felony conviction within the meaning of section 667 , subdivision ( a)(1). It was further alleged3

.

that he served a prior prison term ( § 667.5 , former subd. ( b) ) related to a 2009 conviction for being a felon in possession of a firearm ( former § 12021)

. In 2015 , in accordance with a plea agreement , defendant pleaded guilty to committing voluntary manslaughter ( § 192 ; count 2 ), and he admitted the prior serious felony and strike prior conviction allegations ( §§ 667 , subd. ( a) , 667 , subds. ( b)

– (i) , 1170.12 , subds. ( a)

– (d)) , and the prison prior allegation ( § 667.5 , former subd. ( b)). 1 He was sentenced to a stipulated term of 18 years. The sentence was comp o sed of a middle
term of 12 years on count 2 ( the middle term doubled based upon the strike prior) , plus five years for the prior serious felony conviction ( § 667 , subd. ( a)) , and one year for the
section 667.5 , former subdivision ( b ) prison prior enhancement

. Resentencing Proceedings After the passage of Senate Bill 483 , the court held a hearing in August 2022 during which it appointed defendant counsel. At a January 18 , 2023 , hearing , the People argued defendant was not eligible for a full resentencing; he was only eligible for a one

year sentence reduction. The court continued the matter to permit the parties an opportunity to brief the issue

. Defendant filed a brief arguing the court should find individuals like him , who were sentenced pursuant to a stipulated plea agreement , eligible for full resentencing
under section 1172.75. The People also filed a brief in which they asserted defendant was entitled to have his now invalid prison prior stricken , but the court was without discretion to conduct a full resentencing hearing

. On March 29 , 2023 , the court held a hearing during which it concluded a full resentencing was not appropriate in light of the stipulated plea agreement. It explained
its belief “ that at this junction

... the defendants or inmates in custody for stipulated plea

1 Pursuant to the plea agreement , the People struck the murder count and firearm enhancement allegation.4

.

agreements are not qualified to undo a plea bargain agreement that was actually stipulated to by the parties other than to remove invalid priors

... . ” Accordingly , 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 17 years

. DISCUSSION Defendant appeals from the court ’ s order , asserting the court erred in failing to conduct a full resentencing. The People agree the matter must be remanded for a full resentencing , but they contend if the court reduces defendant ’ s sentence further , the People have the option of withdrawing 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 , legisla tive 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 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 ai d in construing a

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

.

II. Applicable Law
A. Passage of Senate Bill 483 and Enactment of Section 1172.75

In October of 2021 , the Governor signed 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 Department of Corrections and Rehabilitation ( 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
rel evant 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 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 of6

.

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 incarcer ation 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 inte nded 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 the 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 fe lonies. ( 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 prosecution7

.

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 , Har ris 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 to strike a serious felony enhancement in furtherance of justice ( § 1385 , subd. ( a) ) , which it was not previously authorized to do. ( Stamps , 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. 693 , 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 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 . at8

.

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 could seek the court ’ s exercise of
discretion under the amended law on remand , but if the court chose to strike the
enhancement , its decision could have consequences to the plea agreement. ( See Stamps , at pp. 705

– 7 08 .) 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. ( Codding ton , at p p . 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. ( Coddington , 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 rescinding a plea agreement , this intent cannot be understood to govern other po ssible 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 plea9

.

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. ” ( I bi d. )

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. )
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 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. Ins tead , 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 to10

.

withdraw from a plea agreement. ( Stats. 2021 , ch. 728 , § 1.) ” ( I bi d

. ) 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 4 83 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 th ere may have been a negotiated disposition

. ’ ” ( Carter , supra , at p. 974; see Assem . Com. on Public Safety , Rep. on Sen. Bill No. 483 ( 2021

– 2 022 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. ) July 7 , 2021 , p. 4

. ) The

c ommittee ’ 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 uncodified statement , this language did not distinguish between the remo val 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

r eading on Sen. B ill 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 to11

.

rescind a plea agreement

. ’ ]; Sen. Rules Com. , Off. o f Sen. Floor Analys e s , 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

. ’ ( 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 b ill 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 48 3 ( 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 , 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 , S284662; accord , People v. Hernandez ( 2024 ) 103 Cal.App.5th 981, 98 6 [ Ct. App.,
Fourth Dist

. , Div

. Three ] , ptn. for review pending, petn. filed Aug. 22, 2024 .) III, Analysis
Defendant asserts the court erred in concluding he was not entitled to a full resentencing. Accordingly , he contends the matter must be remanded for the court to12

.

conduct a full resentencing and , for the reasons stated in Carter , 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. He contends , at resentencing , the court has discretion

to strike his section 667 , subdivision ( a)(1 ) prior and it may consider whether to strike his prior strike allegation and/or to impose the mitigated term on count 2. He contends
Senate Bill No. 81 ’ s amendments to section 1385 should apply and he should be entitled

to produce evidence of mitigation at resentencing. He further contends Senate Bill

No. 567 ’ s changes to section 1170 should apply at resentencing , noting there is currently

a split of authority as to whether the legislation applies to a stipulated plea agreement , and the California Supreme Court has granted review to resolve this issue in People v. Mitchell ( 2022 ) 83 Cal.App.5th 1051 , review granted Dec ember 14 , 2022 , S277314.
Defendant further asserts we should direct the trial court to order preparation of a supplemental probation report at resentencing given that a significant period of time has elapsed since the original sentencing hearing. The People agree that “ the trial court erred
in concluding that [defendant] , having entered into a stipulated plea agreement , was not entitled to a full resentencing under section 1172.75. ” They further agree , because the
trial court was mistaken as to the scope of its discretionary pow ers and the record does

not clearly indicate the court would have reached the same result if it had held a full resentencing , remand for a full resentencing hearing pursuant to section 1172.75 is appropriate. However , they contend , if the trial court alters the parties ’ plea agreement by further reducing defendant’s sentence beyond striking the prior prison term enhancement , then the prosecution may withdraw from the plea agreement pursuant to People v. Stamps , supra , 9 Cal.5th 685

. 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 individuals13

.

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 clearly indicate the co urt 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 a ware that it had such discretion ’ ” ].) With regard to the People ’ s contention that they 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 co urt 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 this contention. We14

.

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

. Defendant may raise his arguments regarding the applicability of any changes in law at resentencing and for a supplemental probation report to be prepared on remand.

However , we note r ule 4.411 ( a)(2 ) of the California Rules of Court provides “ the court must refer the case to the probation officer for [¶] ... [¶] [a] supplemental report if a significant period of time has passed since the original report was prepared. ”
DISPOSITION
The court ’ s March 29 , 2023 , order is vacated, and the matter is remanded for a new resentencing hearing that complies with section 1172.75.