Filed 10/19/20 P. v. Perry CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.111.5. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

NANUEL PERRY, SR., 

 Defendant and Appellant.

2d Crim. No. B302927

(Super. Ct. No. 2018019411)

(Ventura County)

Nanuel Perry, Sr. appeals his 28-month felony-jail 

sentence (Pen. Code, § 1170, subd. (h)(5))1, imposed after he 

entered into a negotiated plea to commercial burglary (§ 459) and 

admitted two prior prison term enhancements (§ 667.5, subd. (b)). 

Appellant contends, and the Attorney General agrees, that the 

prior prison term enhancements have been invalidated by Senate 

Bill No. 136 (S.B. 136; Stats. 2019, ch. 590, § 1) and must be 

stricken. (People v. Matthews (2020) 47 Cal.App.5th 857, 866

(Matthews).) We strike the prior prison term enhancements and 

remand for resentencing. 

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

Procedural History

Appellant was the “wheelman” in the nighttime 

burglary of a meat market that resulted in a high speed police 

chase. Inside the vehicle were bolt cutters, a money counter, a 

license plate, a hairnet, a screwdriver, and $2,400 cash. 

Appellant was charged with two counts of commercial 

burglary (counts 1-2; § 459) and misdemeanor possession of 

burglary tools (count 3; § 466) with two prior prison term 

enhancements (§ 667.5, subd. (b)). On August 21, 2019, appellant 

entered into a written plea agreement and pled guilty to count 1 

for commercial burglary and admitted the prior prison term 

enhancements. The trial court sentenced appellant to the low 

term of 16 months on count 2 (§ 459), plus 12 months on a prior 

prison term enhancement (§ 667.5, subd. (b)). Counts 1 and 3

were dismissed. (§ 1385.) 

After appellant was sentenced, S.B. 136 was enacted 

to limit section 667.5, subdivision (b) to prior prison terms 

resulting from convictions for sexually violent offenses. 

(Legis. Counsel’s Dig., Sen. Bill No. 136 (2019–2020 Reg. Sess.) 

ch. 590, § 1.) The Attorney General agrees the section 667.5, 

subdivision (b) enhancements must be stricken because 

appellant’s judgment is not final. (See Matthews, supra, 47 

Cal.App.5th at p. 862; People v. Petri (2020) 45 Cal.App.5th 82, 

94 [S.B. 136 applies retroactively to defendants whose judgments 

are not yet final as of January 1, 2020]; People v. Jennings (2019) 

42 Cal.App.5th 664, 681–682 [same].) 
3

Remand for Resentencing

The Attorney General argues that the proper remedy 

is to remand to permit the district attorney to either accept a 

reduction of the sentence (i.e., a 16-month or 24-month felony-jail 

sentence) or to withdraw from the plea agreement. We disagree. 

Unlike Matthews, the plea agreement did not provide for a 

stipulated sentence although the trial court, in approving the 

plea agreement, did indicate it would impose a 28-month felonyjail sentence. It was an open plea agreement. It was not a 

negotiated agreement with a stipulated sentence or upper lid. “‘A 

defendant who enters an open plea and is advised of his 

maximum exposure has received no promise with respect to his 

sentence — he is simply being provided with the information 

necessary to enter a voluntary and intelligent plea.’” (People v. 

Cuevas (2008) 44 Cal.4th 374, 381.)

Requiring “the parties’ compliance with changes in 

the law made retroactive to them does not violate the terms of 

the plea agreement . . . .” (Doe v. Harris (2013) 57 Cal.4th 64, 73; 

compare People v. Stamps (2020) 9 Cal.5th 685, 704 [trial court 

may not alter terms of a plea bargain by changing the length of a 

stipulated sentence without the parties’ consent].) In Matthews,

supra, 47 Cal.App.5th 857, the plea agreement “specified the 

precise sentences to be imposed for each charge and 

enhancement” and “the trial court lack[ed] the power to alter 

those sentences except to eliminate enhancements affected by 

Senate Bill No. 136 (2019–2020 Reg. Sess.).” (Id. at p. 866.) 

Here, the plea agreement provides that appellant can be 

sentenced to county jail and/or home detention for a maximum of 

five years. It is not a stipulated sentence.
4

Disposition

The 12-month prior prison term enhancement is 

stricken and the matter is remanded for resentencing on count 2

for commercial burglary. The trial court is directed to exercise 

it’s sentencing discretion in light of the changed circumstances. 

(Cf. People v. Buycks (2018) 5 Cal.5th 857, 893 [discussing “full

resentencing rule”]; People v. Burbine (2003) 106 Cal.App.4th

1250, 1258-1259 [trial court may reconsider all of its 

discretionary sentencing choices, so long as it does not impose a 

term greater than original].) In all other respects, the judgment 

of conviction is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J. 

TANGEMAN, J.
Bruce A. Young, Judge

Superior Court County of Ventura

______________________________

Todd W. Howeth, Public Defender and Thomas 

Hartnett, Snr. Deputy Public Defender, under appointment by 

the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Zee Rodriguez, Michael R. Johnsen, 

Supervising Deputy Attorneys General, for Plaintiff and 

Respondent.