Filed 10/14/20

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ANTONIO HERNANDEZ,

Defendant and Appellant.

F080131

(Kern Super. Ct. No. BF177632A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, 

Judge.

Conness A. Thompson, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally 

Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of part II. of the Discussion.
2

INTRODUCTION

Appellant/defendant Jose Antonio Hernandez entered a plea negotiation in which 

he agreed to a term of 10 years in state prison. The 10-year term included the imposition 

of two prior prison term enhancements. In this appeal, he asserts the enhancements must 

be dismissed because of the subsequent enactment of Senate Bill No. 136 (2019–2020 

Reg. Sess.) (Senate Bill 136) that amended Penal Code1section 667.5, subdivision (b) 

and, on remand, the prosecution may refile previously dismissed counts but he cannot be 

sentenced to more than the 10-year term that the prosecution agreed to as part of the plea 

agreement.

Based on the California Supreme Court’s recent ruling in People v. Stamps (2020) 

9 Cal.5th 685 (Stamps), we vacate the sentence and remand to the trial court to dismiss 

the prior prison term enhancements, and further hold the People may then either agree to 

modify the bargain to reflect the downward departure in the sentence, or choose to 

withdraw from the original plea agreement, and the court may choose to withdraw its 

prior approval of the plea agreement.

FACTS2

On August 1, 2019, officers responded to a business on a dispatch that a person 

was brandishing a weapon at an employee. Upon arrival, an officer contacted Jaime 

Baez, a security guard at the business, while other officers located defendant. Defendant 

was in possession of a black folding knife and arrested.

Baez reported that he saw defendant loitering behind the business and told him to 

leave. Defendant became mad and said he was not going to leave because he was a 

paying customer. Defendant produced a knife, took steps toward Baez, and said he was 

going to stab him. Baez became fearful for his life and removed his firearm from his 

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2 At the plea hearing, the parties stipulated to the police report as the factual basis 

for the plea. The facts are taken from the police report, as quoted in the probation report.
3

holster. He gave several warnings to defendant and told him the police had been called 

and were on their way. Defendant began to walk away and was apprehended when the 

officers arrived.

PROCEDURAL BACKGROUND

On August 5, 2019, a complaint was filed in the Superior Court of Kern County 

that charged defendant with count 1, assault with a deadly weapon, a knife (Pen. Code, 

§ 245, subd. (a)(1));3 and count 2, criminal threats (§ 422) with an enhancement for 

personal use of a deadly weapon (§ 12022, subd. (b)(1)).

As to both counts, it was alleged defendant had two prior strike convictions; two 

prior serious felony enhancements (§ 667, subd. (a)); and four prior prison term 

enhancements (§ 667.5, subd. (b)).

The plea hearing

On August 15, 2019, the court was scheduled to conduct the preliminary hearing. 

However, the parties advised the court they had reached a plea agreement. The court 

stated the terms to defendant:

“It has been indicated to me that you are going to plead guilty or no contest 

to Count 1, assault with a deadly weapon, which is a serious felony, you are 

going to admit you have two prior strike convictions and that you have 

served two prior terms in prison. You would receive a total of ten years in 

the Department of Corrections. And all remaining charges will be 

dismissed. [¶] ... [¶] In order to reach this disposition I have agreed that 

I’m going to strike one of your two strike convictions, so your sentence 

would be doubled, so it would be a total of ten years.”

Defendant agreed that the court correctly stated the terms of the plea agreement, 

and that he read, understood, and signed the waiver of rights form.

After being advised of and waiving his constitutional rights, defendant pleaded no 

contest to count 1, assault with a deadly weapon, and admitted the two prior strike 

convictions and two prior prison term enhancements. The court granted the People’s 

3 All further statutory references are to the Penal Code unless otherwise stated.
4

motion to dismiss count 2 and the personal use enhancement, and the two additional prior 

prison term enhancements, on the condition the plea remains in full force and effect. The 

court referred the matter to the probation department.

The sentencing hearing

On September 13, 2019, the court conducted the sentencing hearing. The court 

dismissed the prior strike conviction pursuant to section 1385 and stated it would “go 

ahead and impose the ten years as previously indicated.” Defendant was sentenced to the 

upper term of four years for count 1, doubled to eight years as the second strike sentence, 

plus two consecutive one-year terms for the prior prison term enhancements, consistent 

with the terms of the plea agreement.

The court ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)), 

suspended the $300 parole revocation fine (§ 1202.45), and ordered victim restitution in 

an amount to be determined (§ 1202.4, subd. (f)). The court also imposed a $40 court 

operations assessment fee (§ 1465.8) and a $30 criminal conviction assessment fee (Gov. 

Code, § 70373).

On October 16, 2019, defendant filed a timely notice of appeal, and the court 

granted his request for a certificate of probable cause.

DISCUSSION

I. The Prior Prison Term Enhancements

Defendant’s negotiated disposition was for a sentence of 10 years, which included 

two one-year terms for the section 667.5, subdivision (b) prior prison term enhancements. 

In the initial briefing on this case, defendant argued, and the People conceded, that the 

two one-year enhancements must be dismissed based on the subsequent enactment of 

Senate Bill 136 that amended section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1, 

eff. Jan. 1, 2020.)

After briefing was completed, the California Supreme Court’s issued its ruling in 

People v. Stamps, supra, 9 Cal.5th 685. As we will discuss below, Stamps held that as a 
5

result of Senate Bill 1393’s amendments to section 667, subdivision (a) and section 1385, 

the trial court may now exercise its discretion to dismiss a prior serious felony 

enhancement, but the prosecution may also withdraw from a plea agreement if that 

enhancement was part of a specified sentence. (2017–2018 Reg. Sess.) (Stats. 2018, 

ch. 1013, §§ 1–2; Senate Bill 1393.)

After Stamps was decided, this court requested supplemental briefing from the 

parties as to the appropriate remedy once the prior prison term enhancements are stricken, 

and whether the prosecution could withdraw from the plea agreement.

Defendant argues the section 667.5, subdivision (b) enhancements must be 

stricken, the prosecution cannot withdraw from the plea agreement, and Stamps is 

distinguishable since the amendment in that case only granted the trial court discretion to 

decide whether to dismiss the prior serious felony enhancement, whereas Senate Bill 136 

now mandates dismissal of the prior prison term enhancements. Defendant states the 

prosecution may refile the dismissed charges, but the court cannot resentence him to any 

more than the 10-year term that was agreed to by the parties in the original negotiated 

disposition, as directed in People v. Collins (1978) 21 Cal.3d 208 (Collins).

The People counter that based on the rationale in Stamps, the district attorney may 

completely withdraw from the original plea agreement since there is no evidence the 

Legislature intended that Senate Bill 136’s amendments to section 667.5, subdivision (b) 

permit the court to unilaterally change the terms of the plea agreement once the prior 

prison term enhancements are stricken.

As we will explain, we agree with the People’s argument and are compelled to 

remand consistent with Stamps.

A. Section 667.5 and Senate Bill 136

At the time of defendant’s plea and sentencing hearing, “section 667.5, 

subdivision (b) required trial courts to impose a one-year sentence enhancement for each 

true finding on an allegation the defendant had served a separate prior prison term and 
6

had not remained free of custody for at least five years. [Citation.] Courts nevertheless 

had discretion to strike that enhancement pursuant to section 1385, subdivision (a). 

[Citation.] Effective as of January 1, 2020, Senate Bill No. 136 (Reg. Sess. 2019–2020) 

amends section 667.5, subdivision (b) to limit its prior prison term enhancement to only 

prior prison terms for sexually violent offenses, as defined in Welfare and Institutions 

Code section 6600, subdivision (b). [Citations.]” (People v. Jennings (2019) 42 

Cal.App.5th 664, 681.) Senate Bill 136 applies retroactively to all defendants whose 

judgments were not yet final as of the statute’s effective date. (Id. at pp. 681–682.)

Defendant contends, and the People concede, that his prior prison terms were not 

served for sexually violent offenses, and his admissions and the two one-year terms 

imposed must be stricken based on Senate Bill 136’s amendments to section 667.5, 

subdivision (b).

B. Plea Agreements and Changes in the Law

The disputed question is whether the required dismissal of the two consecutive 

one-year terms, that were imposed as part of the specified sentence of 10 years, has any 

effect on the underlying plea agreement that the parties entered into and that was 

approved by the court.

“We have held that when part of a sentence is stricken on review, on remand for 

resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can 

exercise its sentencing discretion in light of the changed circumstances.’ [Citations.]” 

(People v. Buycks (2018) 5 Cal.5th 857, 893.)

There are different considerations in the case of plea agreements. “[T]he process 

of plea negotiation ‘contemplates an agreement negotiated by the People and the 

defendant and approved by the court. [Citations.] ... Judicial approval is an essential 

condition precedent to the effectiveness of the “bargain” worked out by the defense and 

prosecution. [Citations.]’ ” (People v. Segura (2008) 44 Cal.4th 921, 929–930 

(Segura).)
7

“[O]nly the prosecutor is authorized to negotiate a plea agreement on behalf of the 

state. ‘[T]he court has no authority to substitute itself as the representative of the People 

in the negotiation process and under the guise of “plea bargaining” to “agree” to a 

disposition of the case over prosecutorial objection. Such judicial activity would 

contravene express statutory provisions requiring the prosecutor’s consent to the 

proposed disposition, would detract from the judge’s ability to remain detached and 

neutral in evaluating the voluntariness of the plea and the fairness of the bargain to 

society as well as to the defendant, and would present a substantial danger of 

unintentional coercion of defendants who may be intimidated by the judge’s participation 

in the matter. [Citation.]’ [Citations.]” (Segura, supra, 44 Cal.4th at p. 930.)

“Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted 

according to general contract principles. [Citation.] Acceptance of the agreement binds 

the court and the parties to the agreement. [Citations.]” (Segura, supra, 44 Cal.4th at 

pp. 930–931.)

“ ‘Should the court consider the plea bargain to be unacceptable, its remedy is to 

reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted 

the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain 

so that it becomes more favorable to a defendant unless, of course, the parties agree.” 

[Citation.]’ [Citations.]” (Segura, supra, 44 Cal.4th at p. 931, fn. omitted.)

“[I]n the context of a negotiated plea the trial court may approve or reject the 

parties’ agreement, but the court may not attempt to secure such a plea by stepping into 

the role of the prosecutor, nor may the court effectively withdraw its approval by later 

modifying the terms of the agreement it had approved.” (Segura, supra, 44 Cal.4th at 

pp. 931–932, italics added.)
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C. Collins

In a series of cases, the California Supreme Court has addressed the impact of 

amendments or repeals of statutes, either by the legislative or initiative process, that had 

provided for sentences that were part of a plea agreement for a specified sentence.

As noted above, defendant argues that remand in this case should be consistent 

with People v. Collins, supra, 21 Cal.3d 208, where the defendant was charged with 15 

felony counts and several special allegations. He pleaded guilty to oral copulation in 

violation of former section 288a, in exchange for dismissal of the remaining charges and 

allegations, pursuant to a plea agreement. Prior to the sentencing hearing, the Legislature 

repealed former section 288a and decriminalized “the act of oral copulation between 

consenting, nonprisoner adults ....” Nevertheless, the court sentenced the defendant to 

one to 15 years, the term previously prescribed for the repealed offense. (Id. at pp. 211–

212.)

Collins held the decriminalization of the offense applied retroactively under In re 

Estrada (1965) 63 Cal.2d 740 (Estrada) because the defendant’s conviction was not yet 

final. Collins further held the trial court improperly imposed the sentence previously 

mandated by the repealed statute “because the conduct which he admitted in pleading 

guilty was no longer punishable at the time of sentencing.” (Collins, supra, 21 Cal.3d at 

p. 212.) 

Collins explained that on remand, the district attorney could reinstate the counts 

that had been dismissed as part of the plea agreement. (Collins, supra, 21 Cal.3d at 

p. 214.) Since the oral copulation offense had been decriminalized, the prosecution had 

been “deprived of the benefit of its bargain by the relief granted herein,” and the People 

could restore the dismissed counts because “the state [was] substantially deprived of the 

benefits for which it agreed to enter the bargain.” (Id. at p. 215.)

“[The] defendant seeks to gain relief from the sentence imposed but 

otherwise leave the plea bargain intact. This is bounty in excess of that to 

which he is entitled. The intervening act of the Legislature in 
9

decriminalizing the conduct for which he was convicted justifies a reversal 

of defendant’s conviction and a direction that his conduct may not support 

further criminal proceedings on that subject; but it also destroys a 

fundamental assumption underlying the plea bargain – that defendant 

would be vulnerable to a term of imprisonment. The state may therefore 

seek to reestablish defendant’s vulnerability by reviving the counts 

dismissed.

“Under the circumstances posed herein, however, the defendant is 

also entitled to the benefit of his bargain. This is not a case in which the 

defendant has repudiated the bargain by attacking his guilty plea; he attacks 

only the judgment, and does so on the basis of external events - the repeal 

and reenactment of section 288a – that have rendered the judgment 

insupportable. This court has long recognized that the state has no interest 

in preserving erroneous judgments [citation] and that convictions should 

not rest on noncriminal conduct. Here external events and not defendant’s 

repudiation undermined this plea bargaining agreement. Accordingly, we 

must fashion a remedy that restores to the state the benefits for which it 

bargained without depriving defendant of the bargain to which he remains 

entitled.” (Id. at pp. 215–216, italics added, fns. omitted.)

Collins further held that on remand, the People could revive one or more of the 

dismissed counts, but the defendant could not receive a more severe punishment than the 

term which the plea agreement had subjected him. (Collins, supra, 21 Cal.3d at pp. 216–

217.)

D. Harris and Proposition 47

The California Supreme Court again addressed this issue in Harris v. Superior

Court (2016) 1 Cal.5th 984 (Harris), where the defendant was charged with robbery. He 

pleaded guilty to felony grand theft (§ 487, subd. (c)) and admitted a prior conviction

allegation pursuant to a plea agreement for a six-year prison term and dismissal of the 

robbery charge. After the judgment was final, Proposition 47 was enacted which reduced 

certain nonviolent crimes from felonies to misdemeanors, including defendant’s grand 

theft conviction. Proposition 47 also added section 1170.18, that provided a mechanism 

for convicted felons to petition for relief. (Harris, at pp. 987–988.) Thereafter, the

defendant filed a petition for recall under section 1170.18 to have the court recall and 

reclassify his felony conviction as a misdemeanor and resentence him as a misdemeanant. 
10

The People argued the proposed resentencing would deprive both parties of the benefit of 

their bargain and moved to completely withdraw from the plea agreement and reinstate 

the dismissed robbery charge and prior felony conviction allegations. The trial court 

granted the defendant’s petition for recall of sentence and reclassified the offense as a 

misdemeanor. However, the trial court also granted the People’s motion to withdraw 

from the plea agreement and reinstate the dismissed charges. (Harris, at pp. 987–988.)

Harris held the People were not entitled to rescind the plea agreement when the 

court reclassified his felony conviction to a misdemeanor. (Harris, supra, 1 Cal.5th at 

p. 987.) In reaching this decision, Harris focused on the intent behind the enactment of 

Proposition 47 and section 1170.18:

“[E]ntering into a plea agreement does not insulate the parties ‘from 

changes in the law that the Legislature has intended to apply to them.’ 

(Italics added.) Here, of course, it was not the Legislature, but the 

electorate, that enacted Proposition 47. So the question is whether the 

electorate intended the change to apply to the parties to this plea agreement. 

We conclude it did.” (Harris, at p. 991.)

Harris found section 1170.18, subdivision (a) specifically applied to a person 

“ ‘serving a sentence for a conviction, whether by trial or plea,’ ” and concluded that 

“[b]y expressly mentioning convictions by plea, Proposition 47 contemplated relief to all 

eligible defendants.” (Harris, supra, 1 Cal.5th at p. 991.) “The electorate may bind the 

People to a unilateral change in a sentence without affording them the option to rescind 

the plea agreement. The electorate did so when it enacted Proposition 47.” (Id. at 

p. 992.)

“The resentencing process that Proposition 47 established would 

often prove meaningless if the prosecution could respond to a successful 

resentencing petition by withdrawing from an underlying plea agreement 

and reinstating the original charges filed against the petitioner. Many 

criminal cases are resolved by negotiated plea.... Nothing in Proposition 

47 suggests an intent to disrupt this process. [¶] One of Proposition 47’s 

primary purposes is to reduce the number of nonviolent offenders in state 

prisons, thereby saving money and focusing prison on offenders considered 
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more serious under the terms of the initiative. [Citations.] Accepting the 

People’s position would be at odds with that purpose....” (Ibid.)

Harris acknowledged that Collins allowed the People to reinstate certain charges 

that had been dismissed because of the plea agreement in that case, with certain 

limitations, but found Collins “distinguishable both substantively and procedurally” since 

the legal change in Collins “decriminalized the offense to which the defendant had pled” 

and “eviscerated the judgment and the underlying plea entirely, and it did so before the 

judgment. That is not the case here.” (Harris, supra, 1 Cal.5th at p. 993, italics added.)

E. Stamps and Senate Bill 1393

In Stamps, supra, 9 Cal.5th 685, the defendant entered into a plea agreement for a 

specified term of nine years, pleaded no contest to one count of first degree burglary, and

admitted a prior strike and a section 667, subdivision (a) serious felony enhancement. 

The court granted the People’s motion to dismiss the other charges and allegations and 

sentenced him to the specified term of nine years based on the second strike term of four 

years for burglary, plus five years for the section 667, subdivision (a) prior serious felony 

enhancement. (Stamps, supra, 9 Cal.5th at p. 693.)

At the time of sentencing in Stamps, the trial court did not have discretion to strike 

the five-year term for the section 667, subdivision (a) prior serious felony enhancement, 

and it was required to impose the term. (Stamps, supra, 9 Cal.5th at p. 693.) While the 

defendant’s appeal was pending, Senate Bill 1393 took effect and amended section 667, 

subdivision (a) and section 1385, that gave trial courts the discretion to decide whether to 

dismiss the prior serious felony enhancement. On appeal, the defendant argued 

amendments were retroactive to his case, a certificate of probable cause was not required

to raise the issue, and the matter should be remanded for the court to decide whether to 

strike the five-year prior serious felony enhancement term under the amended statutes 

“while otherwise maintaining the plea agreement intact.” (Id. at pp. 693, 700.)

Stamps held Senate Bill 1393’s amendments to section 667, subdivision (a) and 

section 1385 were retroactive to cases not yet final pursuant to Estrada, and a certificate 
12

of probable cause was not required for the defendant to seek appellate relief. (Stamps, 

supra, 9 Cal.5th at pp. 695–699.)

As for the appropriate remedy, Stamps held the trial court and the prosecution 

were not bound by the terms of the original plea agreement if, on remand, the trial court 

decided to dismiss the prior serious felony enhancement that the defendant admitted as 

part of the plea agreement. (Stamps, supra, 9 Cal.5th at p. 699.)4

“If defendant stood convicted of a crime with an enhancing prior as 

a result of trial or an open plea of guilty as charged, his case could be 

remanded for the court to reconsider its sentence in light of its newly 

conferred authority to strike the enhancement. This case is procedurally 

different because both parties entered a plea agreement for a specific prison 

term. [¶] Even when applicable, section 1385 ordinarily does not authorize 

a trial court to exercise its discretion to strike in contravention of a plea 

bargain for a specified term.” (Id. at p. 700, italics added.)

Since the defendant entered into the plea agreement for a specified prison term, the 

trial court could not modify the terms of that bargain by dismissing the five-year prior 

serious felony enhancement without the agreement of both parties. (Stamps, supra, 9 

Cal.5th at pp. 700–701.) The crux of the case was that the trial court could dismiss the 

enhancement while leaving the plea agreement intact only if “the Legislature intended to 

4 As explained above, a sentencing court was previously required to impose the 

five-year term for the section 667, subdivision (a) prior serious felony enhancement, and 

did not have discretion to dismiss it. After the enactment of Senate Bill 1393, sections 

667 and 1385 were amended to provide sentencing courts with discretion to dismiss the

enhancement. (§§ 667, subd. (a)(1), 1385, subd. (b), as amended by Stats. 2018, 

ch. 1013, §§ 1, 2.) As a result, remand has generally been required where the court 

proceeded with sentencing on the erroneous assumption it lacked discretion to dismiss the 

five-year term. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) However, if a

record shows the sentencing court would not have exercised its discretion, then remand 

for the court to consider whether to dismiss the section 667, subdivision (a) enhancement 

would be an idle act and is not required. (People v. McDaniels (2018) 22 Cal.App.5th 

420, 425; People v. Jones (2019) 32 Cal.App.5th 267, 274.)

In contrast, the amendment to section 667.5, subdivision (b) does not vest the 

court with any discretion, but instead mandates dismissal of the prior prison term 

enhancement if the underlying felony conviction is not a sexually violent offense. 

(People v. Jennings, supra, 42 Cal.App.5th at p. 681.)
13

overturn long-standing law that a court cannot unilaterally modify an agreed-upon term 

by striking portions of it under section 1385. We are not persuaded that the Legislature 

intended this result.” (Id. at p. 701.)

Stamps examined the legislative intent behind Senate Bill 1393 and found no 

evidence the Legislature intended the amendments to permit the court to unilaterally 

restructure a plea in the absence of the prosecution’s agreement. (Stamps, supra, 9 

Cal.5th at pp. 702–704.)

“The 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. As described, Senate Bill 1393 was intended to bring 

a court’s discretion to strike a five-year serious felony enhancement in line 

with the court’s general discretion to strike other enhancements. Thus, the 

Legislature gave a court the same discretion to strike a serious felony 

enhancement that it retains to strike any other sentence enhancing 

provision. Its action did not operate to change well-settled law that a court 

lacks discretion to modify a plea agreement unless the parties agree to the 

modification.” (Id. at p. 702.)

Stamps distinguished the intent behind Senate Bill 1393’s amendments to section 

667, subdivision (b), from Harris’s discussion about the impact of Proposition 47 on plea 

agreements. (Stamps, supra, 5 Cal.5th at p. 704.)

“The [resentencing] provision [of Proposition 47] ... allowed defendants 

who had already completed their sentences to have their offenses 

designated as misdemeanors. [Citation.] The electorate thus evinced an 

intent that these offenses be treated as misdemeanors no matter how or 

when a defendant suffered the conviction. As Harris reasoned, to allow the 

prosecution, in response to a successful resentencing petition, to withdraw 

from a plea agreement and reinstate dismissed charges would frustrate 

electoral intent to treat these offenses uniformly as misdemeanors, 

essentially denying meaningful relief to those convicted through plea 

bargains. [Citation.]

“Similar considerations do not apply here. Nothing in the language 

and legislative history of Senate Bill 1393 suggests an intent to modify 
14

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. As 

discussed, Senate Bill 1393's amendment of section 1385 now allows a trial 

court to strike a serious felony enhancement just as it may do with any 

other enhancement. Unlike in Harris, the remedy defendant seeks, to allow 

the court to strike the serious felony enhancement but otherwise retain the 

plea bargain, would frustrate the Legislature’s intent to have section 1385 

apply uniformly, regardless of the type of enhancement at issue, by 

granting the court a power it would otherwise lack for any other 

enhancement. 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., italics added.)

Stamps thus concluded Senate Bill 1393 was not intended “to change well-settled 

law that a court lacks discretion to modify a plea agreement unless the parties agree to the 

modification,” and the defendant could not “ ‘ “whittle down the sentence ‘but otherwise 

leave the plea bargain intact.’ ” ’ ” (Stamps supra, 9 Cal.5th at pp. 702, 706.)

Stamps set forth the following procedures on remand. Defendant would have the 

opportunity to request the trial court to decide whether to exercise its newly granted 

discretion to dismiss the five-year prior serious felony enhancement. If the court declined 

to exercise its discretion, “that ends the matter and defendant’s sentence stands.” 

(Stamps, supra, 9 Cal.5th 707.) If the court dismissed the enhancement, “such a 

determination would have consequences to the plea agreement. For the reasons discussed 

ante, 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. If the 

court indicates an inclination to exercise its discretion under section 1385, the 

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

departure in the sentence such exercise would entail. Barring such a modification 

agreement, ‘the prosecutor is entitled to the same remedy as the defendant – withdrawal 

of assent to the plea agreement ....’ [Citation.] [¶] Further, the court may withdraw its 

prior approval of the plea agreement.” (Id. at pp. 707–708, italics added.)
15

F. Barton and Senate Bill 180

This court recently addressed a similar issue in People v. Barton (2020) 52 

Cal.App.5th 1145, petition for review pending, petition filed September 4, 2020, 

S264285 (Barton), where the defendant pleaded guilty to two narcotics offenses, 

admitted she had two prior drug-related convictions pursuant to the former section 

11370.2, subdivision (c) enhancement, and waived her appellate rights pursuant to a

negotiated disposition. The People moved to dismiss the charges and agreed to a 

stipulated term of eight years eight months, that included two three-year terms for the 

former section 11370.2, subdivision (c) enhancements. (Barton, at p. 1149.)

While the defendant’s appeal was pending, Senate Bill No. 180 (2017–2018 Reg. 

Sess.) (Senate Bill 180) went into effect and amended former section 11370.2 by 

eliminating the three-year enhancements for most drug-related prior convictions. 

(Stats. 2017, ch. 677, § 1.) On appeal, the defendant argued she was entitled to the 

benefit of Senate Bill 180’s amendments since her case was not yet final on appeal. 

(Barton, supra, 52 Cal.App.5th at p. 1149.)

Barton held that the defendant could raise the application of Senate Bill 180’s 

amendments to her case even though she had waived her appellate rights because of the 

enactment of section 1016.8, which rendered any waivers of future benefits of legislative 

enactments that may retroactively apply void as against public policy. Barton further 

held that Senate Bill 180’s amendments were retroactive pursuant to Estrada and 

invalidated the two enhancements that were imposed as part of defendant’s plea 

agreement. (Barton, supra, 52 Cal.App.5th at pp. 1149–1150.)

As for the remedy, the defendant argued the enhancements must be vacated 

because of the amendments and the rest of the plea agreement must remain intact. The 

People replied that once the invalid enhancements were stricken, the trial court could 

impose any punishment allowable for the crimes to which the defendant pleaded guilty. 

(Barton, supra, 52 Cal.App.5th at pp. 1149–1150, 1154–1155.)
16

Barton rejected the remedies proposed by both parties because they contemplated 

“unilateral changes to a material term of the plea agreement” that was prohibited in 

Stamps. (Barton, supra, 52 Cal.App.5th at p. 1150.) “The parties’ plea agreement is now 

unenforceable because Senate Bill 180 invalidated the enhancements upon which nearly 

70 percent of the stipulated sentence is based. [Citation.] ‘Even if a defendant, the 

prosecutor and the court agree on a sentence, the court cannot give effect to it if it is not 

authorized by law. [Citation.] Thus, this is not the kind of situation which would entitle 

defendant to specific performance of the plea bargain [citations].’ [Citations.]” (Id. at 

pp. 1155–1156.)

As in Stamps, Barton held the defendant’s proposal to dismiss the enhancements 

and leave the plea bargain intact depended on whether “the Legislature intended for 

Senate Bill 180 to override the strictures of ... section 1192.5. The legislative history 

discloses no such intent.” (Barton, supra, 52 Cal.App.5th at p. 1150.)

“ ‘According to that legislative history, the “sentence enhancement for prior 

drug convictions” was an “extreme punishment” that had “failed to” 

achieve its goals – “protect[ing] communities [and] reduc[ing] the 

availability of drugs” – while having the following negative effects: 

(1) producing “overcrowded jails and prisons”; (2) “ ‘funneling money 

away from community-based programs and services’ ” in order to “ ‘build[ 

] new jails to imprison more people with long sentences,’ ” thus 

“crippl[ing] state and local budgets”; and (3) “ ‘devastat[ing] low-income 

communities of color’ ” and “ ‘target[ing] the poorest and most 

marginalized people in our communities.’ ” [Citation.] Repeal of the 

enhancement was therefore “ ‘urgently needed’ ” in order “ ‘to undo the 

damage’ ” the enhancement had caused, to “free[]” up funds for 

“reinvest[ment] in community programs that actually improve the quality 

of life and reduce crime,” and to “ ‘reduce racial disparities in the criminal 

justice system.’ ” ’ [Citation.]” (Id. at pp. 1158–1159.)

Barton held “[t]he fact Senate Bill 180 ‘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 prior conviction enhancements under former 

section 11370.2. [Citation.] Therefore, on remand, the parties and the trial court must 
17

abide by ... section 1192.5,” and the trial court cannot unilaterally modify the plea 

agreement by reducing the aggregate sentence. (Barton, supra, 52 Cal.App.5th at 

p. 1159.)

Barton concluded that on remand, the parties could modify the plea agreement to 

eliminate the invalid enhancements, “which would be the functional equivalent of having 

the trial court strike the enhancements, but the court is not obligated to approve the 

agreement as so modified. The parties can also renegotiate the agreement, subject to the 

trial court’s approval, or they can proceed to trial on reinstated charges.” (Barton, supra, 

52 Cal.App.5th at pp. 1150, 1159.)

G. Analysis

We are bound by the analysis in Stamps and Harris and agree with the rationale 

set forth in Barton. The two prior prison term enhancements imposed in this case have 

been rendered invalid after the enactment of Senate Bill 136 and must be stricken. 

However, the two enhancements were integral to the plea agreement and the specified 

sentence of 10 years. Defendant’s proposed remedy to strike the enhancements, and 

allow the prosecution to refile the previously-dismissed charges as long as he is 

sentenced to no more than 10 years as specified in the original plea agreement, would 

result in the court making “unilateral changes to a material term of the plea agreement” 

without the consent of the prosecution. (Barton, supra, 52 Cal.App.5th at p. 1150.)

Defendant argues that Stamps is inapplicable to this case because Senate Bill 136 

now mandates the dismissal of the prior prison term enhancements, while the amendment 

in Stamps only allowed the trial court to decide whether to exercise its discretion to 

dismiss the prior serious felony enhancement. Such a distinction is not the dispositive 

issue in this case. Instead, both Stamps and Harris focused on the history of the 

amendments to determine whether there was any intent to “to change well-settled law 

that a court lacks discretion to modify a plea agreement unless the parties agree to the 
18

modification” to determine whether the district attorney can withdraw from the plea 

agreement. (Stamps, supra, 9 Cal.5th at p. 702; Harris, supra, 1 Cal.5th at p. 992.)

The scope of the trial court’s authority on remand thus depends on whether the 

Legislature intended for Senate Bill 136’s amendments to section 667.5, subdivision (b)

to allow the trial court to unilaterally modify the plea agreement once the prior prison 

term enhancements are stricken.

“Senate Bill 136 repeals a costly and ineffective 1-year sentence 

enhancement that is applied to current sentences for each prior felony jail or 

prison term served. This 1-year enhancement re-punishes people for 

previous jail or prison time served instead of the actual crime when 

convicted of a non-violent felony. By ignoring the actual offense 

committed, this enhancement exacerbates existing racial and socioeconomic disparities in our criminal justice system.

“Additionally, wide-spread research refutes the underlying premise 

that arbitrary enhancements increase public safety or deter future crime. 

Instead, evidence shows that longer and overly-punitive sentences are 

extremely expensive and increase the chances that someone will reoffend. 

Given that this 1-year enhancement is commonly used, the Department of 

Finance projects that repealing this single enhancement will save California 

taxpayers tens of millions dollars each year. It will also keep families 

together, redirect funds to evidence-based rehabilitation and reintegration 

programs, and move California away from our failed mass incarceration 

policies. This 1-year enhancement does apply to repeat violent offenders 

and leaves in place the discretion that prosecutors and judges need to treat a 

repeat offender more harshly than a first time offender. Amendments made 

in the Assembly exclude sexual predators so that these offenders are still 

subject to this 1-year enhancement.” (Sen. Rules Com., Off. of Sen. Floor 

Analyses, Analysis of Sen. Bill No. 136 (2019–2020 Reg. Sess.) Sept. 13, 

2019, pp. 2–3.)

As in Stamps and Barton, there is no evidence the Legislature intended Senate 

Bill 136 to permit the trial court to unilaterally modify a plea agreement once the prior 

prison term enhancements are stricken. Stamps found the legislative history of Senate 

Bill 1393 showed it was intended to bring “a court’s discretion to strike a five-year 

serious felony enhancement in line with the court’s general discretion to strike other 

enhancements” and there was no evidence the Legislature intended to modify the court’s 
19

ability to unilaterally alter a plea agreement. (Stamps, supra, 9 Cal.5th at p. 702.) Barton

concluded the legislative intent behind Senate Bill 180 was silent regarding pleas, and 

instead stated the prior drug-related conviction enhancement was an extreme punishment, 

failed to achieve its goals, and resulted in the negative effects of overcrowding jails, 

taking money away from the community to build more jails, and devastated low-income 

and poor communities, and the amendments were needed to instead allow reinvestment in 

the community to reduce crime and racial disparities. (Barton, supra, 52 Cal.App.5th at 

pp. 1158–1159.)

The legislative intent for the enactment of Senate Bill 136 is very similar to the 

intents discussed in Stamps and Barton – the amendment repealed an enhancement the 

Legislature deemed was costly and ineffective, exacerbated existing racial and 

socioeconomic disparities in the criminal justice system, and it did not deter future crime 

or increase public safety; in addition, the increased terms were characterized as extremely 

expensive, and eliminating the enhancement would save millions of dollars, keep families 

together, and maintain the court’s ability to impose the enhancement for sexual predators. 

(Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 136, supra, 

p. 3.)

In contrast to Harris’s analysis of Proposition 47 and section 1170.18, Senate Bill 

136 is silent regarding pleas and provides no express mechanism for relief, and thus 

refutes any suggestion the Legislation intended to create special rules for the court to 

unilaterally modify the plea agreement once the enhancements are stricken. (Barton, 

supra, 52 Cal.App.5th at p. 1159.)

We thus conclude that, as in Stamps and Barton, the court must dismiss the two 

prior prison term enhancements that were an integral part of defendant’s specified 

sentence, it cannot unilaterally modify the plea agreement by keeping the remainder of 

the bargain intact, and the People may withdraw from the plea agreement.
20

In reaching this conclusion, we acknowledge the holding in Collins that allowed 

the prosecution to refile the previously dismissed charges as long as the defendant was 

not resentenced to a greater term than provided in the original plea agreement. Stamps 

did not extend Collins to permit such a resolution, and instead held the People could 

completely withdraw from the plea agreement if the prior serious felony enhancement 

was dismissed.

We also note that a different result was reached in People v. Matthews (2020) 47 

Cal.App.5th 857 (Matthews), about the impact of Senate Bill 136 on plea agreements – a 

case that was decided before Stamps. The defendant in Matthews pleaded guilty to 

felony grand theft with a prior strike conviction and admitted four prior prison term 

enhancements, pursuant to a plea agreement for a specific sentence of 10 years. While 

the defendant’s appeal was pending, Senate Bill 136 was enacted. Matthews agreed with 

the defendant’s argument that amendment was retroactive and the defendant’s prior 

prison term enhancements must be stricken. (Matthews, supra, at pp. 861–862.)

Matthews also agreed with the defendant that the trial court could strike the prior 

prison term enhancements and leave the rest of stipulated sentence and plea agreement 

intact. (Matthews, supra, 47 Cal.App.5th at p. 866–868.) In reaching this conclusion, 

Matthews reviewed the same legislative materials regarding Senate Bill 136 that we have 

quoted above, found the intent was to save millions of dollars and keep families together, 

and concluded that intent “would be frustrated if the trial court were allowed to 

unilaterally alter agreed-to terms of a plea agreement after striking enhancement 

sentences as required by Senate Bill No. 136” because such benefits “would not be fully 

realized if the trial courts and the People could abandon a plea agreement whenever a 

defendant seeks retroactively to obtain elimination of an enhancement invalidated by 

Senate Bill No. 136 ....” (Matthews, at pp. 868, 869.)

We disagree with Matthews because it runs counter to Stamps and is not supported 

by Harris. As noted above, the legislative intent for Senate Bill 136 is virtually identical 
21

to the intents subsequently discussed in Stamps and Barton that supported the enactments 

of Senate Bills 1393 and 180, and failed to address the critical issue: whether the 

amendments were intended “to change well-settled law that a court lacks discretion to 

modify a plea agreement unless the parties agree to the modification.” (Stamps supra, 9 

Cal.5th at p. 702; Harris, supra, 1 Cal.5th at p. 992.)

We thus conclude that, on remand, the trial court must dismiss the prior prison 

term enhancements. “[T]he prosecution may, of course, agree to modify the bargain to 

reflect the downward departure in the sentence such exercise would entail. Barring such 

a modification agreement, ‘the prosecutor is entitled to the same remedy as the 

defendant – withdrawal of assent to the plea agreement ....’ [Citation.] [¶] Further, the 

court may withdraw its prior approval of the plea agreement.” (Stamps, supra 9 Cal.5th 

at pp. 707–708.)

II. The Restitution Fine and Fees

Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 and argues the 

court violated his due process rights because it imposed a restitution fine and other fees at 

the sentencing hearing on his plea agreement without determining whether he had the 

ability to pay these amounts. Defendant asserts the order imposing the fine and fees must 

be stayed and the matter remanded for the court to determine his ability to pay.5

We decline to address the merits of these arguments because we are remanding the 

matter for the court to address the impact of dismissing the prior prison term 

enhancements on the plea agreement and defendant’s sentence, which could result in the 

district attorney’s withdrawal of the plea agreement.

 See footnote, ante, page 1. 

5 The California Supreme Court is currently considering whether trial courts must 

consider a defendant’s ability to pay before imposing or executing fines, fees, and 

assessments; and if so, which party bears the applicable burden of proof. (See People v. 

Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
22

For guidance on remand, we have explained in People v. Aviles (2019) 39 

Cal.App.5th 1055, that we believe Dueñas was wrongly decided and an Eighth 

Amendment analysis is more appropriate to determine whether restitution fines, fees, and 

assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, 

at pp. 1068–1072.) We further note that even if Dueñas applied, a defendant’s failure to 

object to the statutory minimum restitution fine of $300 does not waive the issue (People 

v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154), but any error arising from a 

court's failure to make an ability to pay finding may be harmless beyond a reasonable 

doubt under the circumstances. (People v. Jones (2019) 36 Cal.App.5th 1028, 1030–

1031; Aviles, at pp. 1075–1077.)

DISPOSITION

The judgment is reversed and remanded to the superior court with directions to 

strike defendant’s admissions and the two consecutive one-year terms imposed for the 

section 667.5, subdivision (b) prior prison term enhancements, and for further appropriate 

proceedings consistent with People v. Stamps, supra, 9 Cal.5th 685.

POOCHIGIAN, J.

WE CONCUR:

LEVY, Acting P.J.

DETJEN, J.