In an Open Plea, Is Striking Prison Prior Improper?

In 2018 in Butte County, defendant Nathan John Henderson pleaded in the open no contest to possession of a nunchaku (Penal Code § 22010) and admitted serving a prior prison term (Penal Code § 667.5(b).  The judge imposed an aggregate sentence of four years, consisting of three years for the nunchaku plus a consecutive year for a prior prison term enhancement pursuant to Penal Code § 667.5(b).

The judge suspended execution of the final 1,096 days of the sentence and ordered that time to be served as a period of mandatory supervision with various terms and conditions.

Henderson subsequently admitted violating his mandatory supervision on four occasions.

On May 27, 2020, after Senate Bill 136 had become effective on January 1, 2020 (the bill was signed October 8, 2019), striking the one-year prison prior enhancement, the Butte County judge terminated Henderson’s mandatory supervision, reaffirmed his sentence and declined to strike the prior prison term enhancement under Senate Bill 136. 

It merits mention for the reader that Senate Bill 136 contains exceptions to its application for a person with a qualifying prior sexually violent conviction, as defined in Welfare & Institutions Code § 6600(b).

However, the statute is generally understood to apply to cases where judgment is not final as of its effective date.  People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 308; In re Estrada (1965) 63 Cal.2d 740.

However, in light of the California Supreme Court decision in People v. Stamps (2020) 9 Cal.5th 685, the Third Appellate District asked the parties for supplemental briefing on whether striking the prison prior enhancement while maintaining the remainder of the plea agreement would deprive the People of the benefit of their bargain, such that the People must be afforded an opportunity to withdraw from the plea agreement.

After reviewing the supplemental briefing, in which Henderson not surprisingly argued the court could strike the one-year prison prior enhancement.  Henderson, relying upon People v. McKenzie (2019) 9 Cal.5th 40, argued that because the trial court had ongoing authority to revoke, modify or terminate defendant’s mandatory supervision, the criminal proceeding had not terminated and Senate Bill 136 was in effect when the trial court declined to strike the prior prison term enhancement.

The People said the court could not, but acknowledged in People v. Conatser (2020) 53 Cal. App. 5th 1223, which relied upon McKenzie to conclude that a defendant with a split sentence is entitled to the ameliorative effect of the enactment of Health & Safety Code § 11370.2 because the split sentence meant his judgment was not final yet.  However, the People argued Conatser was wrongly decided by equating a split sentence with a grant of probation.

In response, Henderson urged the Third Appellate District to follow Conatser, as well as People v. Martinez (2020, 2d App. Dist.) 54 Cal. App. 5th 885 (split sentence) and People v. Andahl (2021) 62 Cal. App. 5th 203, 211 (SB 136 and probation).

In balancing these arguments, the Third Appellate District concluded Stamps was not determinative because Henderson’s sentence was after an open plea with the judge, not a negotiated settlement.  Moreover, it agreed with McKenzie and the subsequent cases applying it that retroactive application of Senate Bill 136 is proper.

The Third Appellate District therefore modified the judgement to strike Henderson’s prior prison term enhancement and otherwise affirmed the judgement.

In closing, we note that SB 136 was applied and the one-year term removed, however, Stamps should be understood clearly: in Stamps, the issue was application of Senate Bill 1393, now codified at Penal Code § 1385, which permits a judge to dismiss a prior serious felony enhancement.  Stamps involved a guilty plea with a stipulated sentence.  Id., 9 Cal.5th 685.

The First Appellate Court explained Stamps, pointing out that at pages 706 to 707, the court does not just strike the sentencing enhancement for the prior serious felony conviction; it voids the entire plea bargain altogether, thereby “restoring the parties to the status quo ante.”  The court can then resentence defendant to the gun enhancement in its discretion.

The citation for the Third Appellate District Court ruling discussed above is People v. Nathan John Henderson  (3d App. Dist., 2021) 67 Cal. App. 5th 785, 282 Cal. Rptr. 3d 538.

For more information about issues with open pleas and SB 136, please click on the following articles: