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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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

N ANUE L PERRY, SR.,
Defendant and Appellant. 2d Crim. No. B 302927 (Super. Ct. No. 2018019411 ) ( Ventura County)

N anuel Perry, Sr. appeals his 28

- month felony

- jail

se n tence (Pen. Code, § 1170, subd. (h)(5)) 1 , imposed after he entered into a negotiated p lea to commercial burglary (§ 459) and
admitted two prior prison t erm enhancements (§ 667.5, subd. (b) ). Appellant conte n ds, and the Attorney General agrees , that the prior prison te rm enhanc ements have been i nvalidated by S enate Bill No. 136 (S

. B

. 136; S tats. 2019, ch. 590 , § 1 ) and must be
stricken. ( People v. Matthews (2020) 47 Cal.App.5th 857, 866 ( Matthews ) .) We strike the p rior prison term enhancements and
remand for resentencing

.

1 All further statutory references ar e to the Penal Code.2 Procedural History Appellant was the “ wheelman ” in the nig httime
b urglary of a meat market that resulted in a high speed police
chase

. Inside the vehicle were bolt c utters, a money counter, a license plate, a ha ir net
, 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 pri son term enhancements (§ 667.5, subd. (b) )

. On August 21, 2019, appellant
entered into a written plea agre ement and pled guilty to count 1 for commercial burgla ry and admit ted the prior prison term

en hancements. The trial court sentenced app ella n t 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.)

Af ter appellant was sentenc e d

, S

. B

. 13 6 was ena cted
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.) T he A ttorney G eneral 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. 13 6 applies retroactivel y 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 Genera l argues that the proper remedy
is to remand to permit the district attor ney to either accept a
reduct ion 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 prov ide for a

s tipulated sentence although the trial cou rt, in approving the plea agreement, did indicate it would impose a 28

- month felony

jail 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 ad vised 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 par ties ’ compliance with changes in
the law made retroactive to them does not violate the t erms 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 p lea 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 lac k [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 provide s that appellant c an be sentenced to county jail and/or home detention for a max imum of five yea rs. It is not a stipulated sentence.4 Disposition
The 12

- month prior prison term enhancement is

st r icken and the matter is remanded for resentencing on count 2 for commercial burglary . T he trial court is directed to exercise
it ’s sentencing discre tion 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.4 th 1250, 1258

- 1259 [trial court may reconsider all of its
discretion ary 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, Jud ge

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 Gener al, Lance E. Winters

, Chief Assistant Attorney General, Susan Sullivan Pithey , Senior Assistant Attorney General, Zee Rodriguez, Michael R. Johnsen

, Supervising Deputy Attorney s General, for Plaintiff and Respondent.