People v. McDonald CA3 ( 2021 )

Filed 8/23/21 P. v. McDonald CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C090926
Plaintiff and Respondent, (Super. Ct. No.
STKCRFER20190005600)
v.
ANTHONY DONTAY MCDONALD,
Defendant and Appellant.
Defendant Anthony Dontay McDonald entered a negotiated plea, in which he pled
no contest to the sale or transportation of cocaine and admitted he had two prior prison
terms within the meaning of Penal Code1 section 667.5, subdivision (b). In exchange, the
prosecution dismissed the charge of possession for sale of cocaine and all other
enhancements. The trial court sentenced defendant to the stipulated prison term of five
1 All further section references are to the Penal Code unless otherwise specified.
1
years, which consisted of the low term of three years for the sale or transportation of
cocaine plus one year for each of the prior prison term enhancements.
Defendant advances two arguments on appeal. First, defendant contends, and the
People agree, that the two one-year prior prison term enhancements must be stricken
because of recently adopted Senate Bill No. 136 (2019-2020 Reg. Sess.). The parties,
however, dispute the proper remedy in that regard. Specifically, defendant argues the
enhancements may be stricken on appeal while keeping the remainder of the plea
agreement intact; whereas, the People argue the case must be remanded to permit the
prosecution to either accept the reduced sentence or withdraw from the plea agreement,
relying on People v. Stamps (2020) 9 Cal.5th 685. Second, defendant contends, and the
People again agree, that the narcotics registration requirement should be stricken from the
abstract of judgment because the Legislature repealed Health and Safety Code
section 11590.
The parties correctly observe the narcotics offender registration requirement must
be stricken. The parties further appropriately agree the two one-year enhancements must
be stricken because Senate Bill No. 136 retroactively modified the plea agreement. As to
the remedy in that regard, Stamps is inapplicable. In the absence of controlling Supreme
Court precedent and under the circumstances of this case, the appropriate remedy is to
strike the enhancements on appeal.
DISCUSSION
The substantive facts underlying defendant’s conviction are not relevant to the
issues raised on appeal and are not recounted here.
I
The Narcotics Offender Registration Requirement Must Be Stricken
Defendant and the People agree defendant’s narcotics offender registration
requirement should be stricken because the Legislature repealed Health and Safety Code
section 11590, which required persons convicted of certain offenses involving controlled
2
substances to register as narcotics offenders with the local law enforcement agency.
(Stats. 2019, ch. 580, § 2.) The repeal became effective on January 1, 2020, while
defendant’s case was still pending and not yet final. The parties are correct.
In Estrada, our Supreme Court addressed the retroactive application of a criminal
statute amended to mitigate the punishment for a proscribed act prior to final judgment in
a defendant’s case. (In re Estrada (1965) 63 Cal.2d 740, 742.) “When the Legislature
amends a statute so as to lessen the punishment it has obviously expressly determined
that its former penalty was too severe and that a lighter punishment is proper as
punishment for the commission of the prohibited act. It is an inevitable inference that the
Legislature must have intended that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it constitutionally could
apply. The amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided the judgment convicting
the defendant of the act is not final.” (Id. at p. 745.) Our Supreme Court relied on the
common law rule that, “when the old law in effect when the act is committed is repealed,
and there is no saving clause, all prosecutions not reduced to final judgment are barred.”
(Id. at pp. 746-747.) Our Supreme Court recently affirmed the Estrada rule. (People v.
Superior Court (Lara) (2018) 4 Cal.5th 299; People v. Frahs (2020) 9 Cal.5th 618.)
The repeal of Health and Safety Code section 11590 served to eliminate a burden
that narcotics offenders once shouldered. In accordance with Estrada, the narcotics
offender registration requirement must be stricken.
II
Senate Bill No. 136
Signed by the Governor on October 8, 2019, and effective January 1, 2020, Senate
Bill No. 136 amends section 667.5, subdivision (b) to eliminate the one-year prior prison
term enhancement for most prior convictions. (Stats. 2019, ch. 590, § 1.) An exception,
3
not applicable here, is made for a qualifying prior conviction of a sexually violent
offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).
Defendant argues Senate Bill No. 136 applies retroactively to him and, because the
trial court would exercise no discretion on remand, it is appropriate for this court to strike
the prior prison term enhancements on appeal. The People agree Senate Bill No. 136
applies retroactively but assert the proper remedy is to remand for the trial court to strike
the enhancements and allow the prosecution to either accept the lower sentence or
withdraw from the plea agreement because Senate Bill No. 136 “was intended to
ameliorate punishment for a particular enhancement provision, and neither its text nor its
legislative history addresses plea bargaining.” (Citing People v. Stamps, supra, 9 Cal.5th
at p. 685.)
The parties correctly observe Senate Bill No. 136 applies retroactively to
defendant. As to the remedy, we agree with defendant that it is appropriate in this case to
strike the enhancements on appeal. Admittedly, our appellate courts are once again
vexed by the remedy arising from the application of retroactive ameliorative legislation to
plea agreements following the enactment of Senate Bill No. 136 -- specifically, as to
stipulated sentences when a portion of those sentences must be stricken. (See, e.g.,
People v. France (2020) 58 Cal.App.5th 714, review granted Feb. 24, 2021, S266771
[appellate court striking unauthorized prior prison term enhancement; prosecution may
not withdraw from plea agreement]; People v. Hernandez (2020) 55 Cal.App.5th 942,
review granted Jan. 27, 2021, S265739 [allowing the People to withdraw from plea
agreement when prior prison term enhancement is stricken; no cap as to any subsequent
sentence]; People v. Joaquin (2020) 58 Cal.App.5th 173, review granted Feb. 24, 2021,
S266594 [Senate Bill No. 136 renders plea agreement unenforceable; “[o]n remand, the
parties may enter into a new plea agreement, but, if they do, the trial court may not
impose a longer sentence than that in the original agreement”].) Our Supreme Court is
4
now poised to provide clarification. In the meantime, we believe it is appropriate to
strike the enhancements at issue here.
A
Senate Bill No. 136 Applies Retroactively
As this court explained in Andahl, Senate Bill No. 136 applies retroactively.
(People v. Andahl (2021) 62 Cal.App.5th 203, review granted June 16, 2021, S268336.)
Because Senate Bill No. 136 is now effective and defendant’s judgment is not yet final,
the amended law applies retroactively to him. (In re Estrada, supra, 63 Cal.2d at pp.
744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes
apply to all cases not final when statute takes effect]; see People v. Buycks (2018) 5
Cal.5th 857, 882 [“ ‘The rule in Estrada has been applied to statutes governing penalty
enhancements, as well as to statutes governing substantive offenses’ ”].)
B
Stamps Does Not Apply And The Unauthorized Enhancements Are Stricken
In Stamps, the defendant “was charged with three counts of first degree burglary
[citations]. The complaint also alleged two prior first degree burglary convictions as
serious felonies under the ‘Three Strikes’ law and the serious felony enhancement
provision. Three state prison prior convictions were also alleged. [Citation.] Had
defendant been convicted of all counts and enhancements, he would have been subject to
the 25-year-to-life provisions of the Three Strikes law [citation] along with any
applicable fixed-term enhancements.
“In November 2017, pursuant to negotiation, defendant pled to one first degree
burglary and admitted one serious felony conviction in exchange for a nine-year prison
sentence, based on the low term for burglary (two years), doubled under the Three Strikes
law [citation], plus five years for the serious felony enhancement. All remaining counts
and allegations were dismissed on motion of the district attorney as part of the plea
agreement. Defendant was sentenced in January 2018, subsequently filed a notice of
5
appeal, and sought a certificate of probable cause [citations], which the trial court
denied.” (People v. Stamps, supra, 9 Cal.5th at p. 693, fn. omitted.)
The Governor approved Senate Bill No. 1393 (2017-2018 Reg. Sess.) on
September 30, 2018, allowing a trial court to dismiss a serious felony enhancement in
furtherance of justice, as provided under section 1385. Because his judgment was not yet
final, the defendant argued on appeal that the legislation entitled him to remand for the
trial court to exercise its discretion whether to strike the serious felony enhancement;
defendant argued the plea agreement otherwise had to remain intact. (People v. Stamps,
supra, 9 Cal.5th at p. 693.) Our Supreme Court disagreed with the defendant’s proposed
remedy.
Our Supreme Court’s analysis turned on whether, by enacting Senate Bill
No. 1393, the Legislature intended to overturn long-standing law preventing a trial court
from unilaterally modifying an agreed-upon term of a plea agreement by using its
discretion to strike enhancements. (People v. Stamps, supra, 9 Cal.5th at p. 701.) The
court explained that, “[e]ven 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.) After considering the legislative history, our Supreme
Court concluded “[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.” (Id. at
p. 702.)
The court explained that “Senate Bill [No.] 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
6
modification.” (People v. Stamps, supra, 9 Cal.5th at p. 702.) Indeed, it reasoned, “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 [No.] 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.” (Id. at p. 704.)
Our Supreme Court concluded the appropriate remedy was to remand the matter to
allow the defendant an opportunity to seek relief under Senate Bill No. 1393, with the
understanding that the People would be allowed to withdraw from the plea bargain if the
trial court indicated its inclination to exercise its discretion to strike the enhancement.
(People v. Stamps, supra, 9 Cal.5th at p. 707.) The court reiterated this remedy was
appropriate because “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.” (Ibid.)
Two critical differences between Senate Bill No. 136 and Senate Bill No. 1393 are
the identity of the decision maker and the effect of the legislation. Under Senate Bill
No. 1393, the trial court is the decision maker, exercising its discretion to determine
whether to strike the serious felony enhancement.2 An exercise of such discretion,
2 Notably, the same is true of the trial court’s role under Proposition 47, as
considered in Harris, although certainly the scope of the trial court’s discretion is
different. (Harris v. Superior Court (2016) 1 Cal.5th 984.) Section 1170.18,
subdivision (b), which was added to the Penal Code via Proposition 47 (Harris, at
p. 989), “provides that a person meeting the requirements of subdivision (a) . . . ‘shall’ be
resentenced ‘unless the court, in its discretion, determines that resentencing the petitioner
would pose an unreasonable risk of danger to public safety’ ” (Harris, at pp. 991-992).
7
however, is incompatible with plea agreements, as our Supreme Court explained, because
long-standing law precludes the trial court from unilaterally modifying the terms of a plea
agreement and the statutory scheme and legislative history of Senate Bill No. 1393
indicate no intent to overturn such established law. In contrast, in Senate Bill No. 136,
the Legislature is the decision maker; the Legislature has declared that those who served
a prior prison term for offenses other than certain sexually violent offenses shall no
longer be subject to the prior prison term enhancement under section 667.5, subdivision
(b).3 Nothing in our existing law precludes the Legislature from modifying plea
agreements. In fact, the law provides for the exact opposite. First, “[s]ubject to the
constitutional prohibition of cruel and unusual punishment, the Legislature may define
and punish offenses as it sees fit.” (People v. Knowles (1950) 35 Cal.2d 175, 181.)
Second, “the general rule in California is that a plea agreement is ‘ “deemed to
incorporate and contemplate not only the existing law but the reserve power of the state
to amend the law or enact additional laws for the public good and in pursuance of public
policy.” ’ ” (Doe v. Harris (2013) 57 Cal.4th 64, 73.) The Legislature may thus bind the
People to a unilateral change in a sentence without affording them the option to rescind
Thus, the ultimate decision maker under Proposition 47 is also the trial court, although it
must act within the confines of the legislation enacted by the electorate.
3 According to the March 26, 2019, report for the Senate Committee on Public
Safety, the prior prison term enhancement under section 667.5, subdivision (b), was a
major driver of prison and jail populations and associated costs to taxpayers. (Sen. Com.
on Pub. Safety, Analysis of Sen. Bill No. 136 (2019-2020 Reg. Sess.) as introduced Jan.
15, 2019, p. 1.) The report states, “[t]he imposition of this enhancement is ineffective in
protecting public safety, is wasteful of public resources, and is damaging to the families
and communities that disproportionately suffer from these long sentences.” (Id. at p. 2.)
The report further states, “[r]epealing ineffective sentencing enhancements [like the prior
prison term enhancement] [would] save hundreds of millions of dollars, reduce prison
and jail populations, mitigate racial and gender disparities in incarceration, and end the
double punishment for prior convictions.” (Id. at p. 3.)
8
the plea agreement. (See Harris v. Superior Court, supra, 1 Cal.5th at p. 992 [same as to
electorate].)
By giving effect to Senate Bill No. 136 and striking the unauthorized sentence, the
court does not make a unilateral change to the stipulated sentence of the plea bargain in
contravention of section 1192.5. The court merely acts as the vessel through which the
Legislature accomplishes and effects its directive. The court’s action in that regard is
based on long-standing law.
The practical effect of Senate Bill No. 136 is to retroactively render defendant’s
one-year enhancements under section 667, subdivision (b) an unauthorized sentence
because it is a sentence that “could not lawfully be imposed under any circumstance” in
this nonfinal case. (People v. Scott (1994) 9 Cal.4th 331, 354.) Just as a “conviction
cannot stand on appeal when it rests upon conduct that is no longer sanctioned” (People
v. Collins (1978) 21 Cal.3d 208, 214), neither can a sustained allegation based on a
currently inapplicable enhancement allegation. The enhancement must, therefore, be
stricken. (In re Andrews (1976) 18 Cal.3d 208, 212 [“A court is without authority to
impose a sentence not prescribed by statute”]; People v. Harvey (1980) 112 Cal.App.3d
132, 139 [“in computing one’s sentence under a plea bargain, even though agreed to by
the parties, the court may not give effect to an enhancement unauthorized by law”];
People v. Jackson (1981) 121 Cal.App.3d 862, 869 [court cannot give effect to an agreed-
upon sentence if it is not authorized by law].)
The Legislature is presumed to know that Senate Bill No. 136 applies retroactively
to cases not yet final and a court must strike an enhancement unauthorized by law. (See
Estate of McDill (1975) 14 Cal.3d 831, 839 [it is a generally accepted principle that in
adopting legislation the Legislature is presumed to know existing law].) More
specifically, the Legislature is presumed to know that: (1) Senate Bill No. 136
retroactively renders sentences in nonfinal cases unauthorized; and (2) courts must strike
an unauthorized sentence, even with respect to plea agreements (e.g., People v. Harvey,
9
supra, 112 Cal.App.3d at p. 139 [“in computing one’s sentence under a plea bargain,
even though agreed to by the parties, the court may not give effect to an enhancement
unauthorized by law”]; People v. Collins, supra, 21 Cal.3d at pp. 211-212). Thus, in
considering the question of legislative intent -- i.e., whether the Legislature intended the
change in the law to apply to plea agreements (Doe v. Harris, supra, 57 Cal.4th at pp. 66,
73) -- it seems logical that, because “ ‘the Legislature is presumed to have had knowledge
of existing domestic judicial decisions and to have enacted and amended [Senate Bill No.
136] in the light of such decisions as have a direct bearing upon [the statute]’ ” (Estate of
McDill, at p. 839), the Legislature intended for the unauthorized sentence created by
Senate Bill No. 136 to apply to plea agreements within the meaning of Doe, unless
otherwise expressed. Neither the statutory scheme nor the legislative history shows an
intent to overturn existing law that the unauthorized sentence doctrine applies to plea
agreements.
The natural next question is, what does that mean? Harris provides the answer. If
the Legislature intended for legislation to apply to plea agreements, as stated in Doe, and
the change in the law reduces the sentence in the plea agreement, the Legislature “bind[s]
the People to a unilateral change in [the] sentence without affording them the option to
rescind the plea agreement.” (Harris v. Superior Court, supra, 1 Cal.5th at pp. 991-992.)
The Stamps remedy is thus wholly inapplicable to Senate Bill No. 136.
In addition to being inapplicable, the Stamps remedy is also incompatible with
Senate Bill No. 136 from a practical perspective. The Stamps remedy allows a limited
remand to give a defendant the opportunity and choice to seek relief under Senate Bill
No. 1393 for the trial court to exercise its newly minted discretion. (People v. Stamps,
supra, 9 Cal.5th at p. 707.) But, here, defendant has no choice in whether he seeks relief
under Senate Bill No. 136; the court must strike the one-year enhancements because they
constitute an unauthorized sentence. Because of this, application of the Stamps remedy
to a statute like Senate Bill No. 136 results in a scheme where, if the Legislature
10
retroactively unauthorizes a sentence in a plea agreement in a case not yet final, the
prosecution will always be entitled to withdraw from the plea agreement when the court
acts in accordance with the legislative mandate. Stamps did not contemplate such a
sweeping result, especially when considering judgments based on plea agreements
“represent the vast majority of felony and misdemeanor dispositions in criminal cases,”
with statistics indicating that less than 5 percent of felony cases are disposed of through
felony convictions resulting from a court or jury trial. (In re Chavez (2003) 30 Cal.4th
643, 654, fn. 5.)
It appears that, rather than comporting with Stamps (a case not addressing an
unauthorized sentence), application of the Stamps remedy to Senate Bill No. 136
stipulated sentence cases would unwittingly and unintentionally in practice result in a
modified and expanded version of the remedy discussed in Collins (a case addressing an
unauthorized sentence). In Harris, our Supreme Court summarized Collins as follows:
“In Collins . . . , the defendant was charged with 15 felonies, including burglary,
attempted burglary, forcible rape, assault with intent to commit rape, and forcible oral
copulation. ‘Pursuant to a plea bargain, defendant entered a plea of guilty to one count of
oral copulation; in return, the allegations of commission of that crime by means of force
and of a prior felony conviction were stricken, and the other 14 counts were dismissed.’
[Citation.] After the plea, the Legislature decriminalized nonforcible oral copulation, the
crime to which the defendant had pleaded guilty. Nevertheless, the trial court sentenced
him to state prison. On appeal, because the conduct to which the defendant pleaded
guilty was no longer criminal, this court reversed the conviction. [Citation.] As we
summarized, ‘A conviction cannot stand on appeal when it rests upon conduct that is no
longer sanctioned.’ [Citation.]
“We then considered the effect of the reversal on the dismissed counts. We stated
the issue as being ‘whether the prosecution has been deprived of the benefit of its bargain
by the relief granted herein. We conclude that it has and hence the dismissed counts may
11
be restored. [¶] The state, in entering a plea bargain, generally contemplates a certain
ultimate result; integral to its bargain is the defendant’s vulnerability to a term of
punishment. . . . When a defendant gains total relief from his vulnerability to sentence,
the state is substantially deprived of the benefits for which it agreed to enter the bargain.
Whether the defendant formally seeks to withdraw his guilty plea or not is immaterial; it
is his escape from vulnerability to sentence that fundamentally alters the character of the
bargain.
“ ‘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 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.’ [Citation.]
“Regarding remedy, we concluded that the state could revive one or more of the
dismissed counts, but the defendant could not receive a more severe punishment than that
to which the plea agreement had subjected him.” (Harris v. Superior Court, supra, 1
Cal.5th at pp. 989-990.)
Like in Collins, the unauthorized sentence here must be stricken; the court has no
discretion to enforce the plea agreement under its pre-Senate Bill No. 136 terms. Unlike
in Collins, however, the retroactive application of Senate Bill No. 136 does not eviscerate
the plea agreement and deprive the prosecution of its bargain as to defendant’s
vulnerability to sentence. Yet, if the Stamps remedy is applied to Senate Bill No. 136
stipulated sentence cases, the net result is the same as in Collins in that the prosecution
may withdraw from the plea agreement and reinstate all charges on remand. Our
Supreme Court has not expanded the remedy discussed in Collins to such circumstances.
12
In short, based on the foregoing, by enacting Senate Bill No. 136, the Legislature
unilaterally modified the parties’ plea agreement without affording the prosecution the
option to rescind the plea agreement. Because the retroactive application of Senate Bill
No. 136 does not eviscerate the plea agreement in this case, we will strike the two one-
year enhancements and remand with an order to the trial court to prepare a corrected
abstract of judgment.
DISPOSITION
The narcotics offender registration requirement and the two one-year
enhancements imposed under section 667.5, subdivision (b) are stricken. The trial court
is directed to correct the abstract of judgment in accordance with this opinion and to
forward a certified copy to the Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
/s/
Robie, Acting P. J.
I concur:
/s/
Renner, J
13
MURRAY, J., Dissenting.
When a trial court accepts a negotiated resolution to a case and imposes the
sentence agreed upon by the parties, it exercises discretion. In the exercise of that
discretion, a trial court must consider whether the proposed resolution is “ ‘in furtherance
of the best interest of society.’ ” (People v. Stamps (2020) 9 Cal.5th 685, 706 (Stamps)).
Here, the trial court dismissed a felony count, a strike, and an enhancement consistent
with the resolution negotiated by the parties. In doing so, it impliedly concluded that the
five-year sentence it imposed furthered the best interest of society. But now, the majority
effectively resentences defendant on its own, depriving the trial court of its discretion in
determining whether the reduced sentence is still in the best interest of society. Nothing
in Senate Bill No. 136 (2019-2020 Reg. Sess.) (S.B. 136) suggests this result was
contemplated by the Legislature. Consequently, while I concur in part I of the majority
opinion, I respectfully dissent as to part II.
I do agree with the majority on one thing it said in part II. Regarding retroactive
application of S.B. 136, “our appellate courts are once again vexed by the remedy arising
from the application of retroactive ameliorative legislation.” (Maj. opn., ante, at p. 4.)
These issues need not be addressed by appellate court litigation if the Legislature
expressly states whether the sentencing reforms it enacts are to be given retroactive
application or not, and if so, whether retroactive application applies to negotiated
sentences or not.4 Since that did not happen in S.B. 136, the appellate courts are tasked
with providing the answer to a question that need not have been asked. As the split of
4 I agree with the majority in People v. Griffin (2020) 57 Cal.App.5th 1088 (Griffin), to
the extent that they “urge[d] the Legislature to clarify its intent on how its differing
sentencing reform measures should be applied,” (id. at p. 1099, fn. 7), at least going
forward in the future. And if it is the Legislature’s intent is to apply S.B. 136
retroactively to all plea-bargained sentences, it could enact a law saying as much, which
would then make existing sentences statutorily unauthorized and require resentencing.
1
authority among the districts indicates, the answer is not an easy one. Nevertheless, in
my view, the answer is not one that deprives the trial court of the discretion to withdraw
consent to a plea agreement after circumstances changed with the enactment of S.B. 136.
Thus, in my view, remand is required to allow the court to determine whether the
reduced sentence, given the totality of the circumstances present at sentencing, is in the
furtherance of the interests of society or not. If it concludes it is not, then in the exercise
of its discretion, the court should be permitted to withdraw its approval of the plea
agreement. If, on the other hand, it determines that a three-year sentence is in the
interests of society, then the prosecution should have the opportunity to withdraw its
consent from the previously negotiated agreement. Either way, the discretionary decision
the trial court must make in this setting is no different than the discretionary decision
discussed in Stamps.
I. Factual and Procedural Background
Defendant was charged with sale of a controlled substance (Health & Saf. Code
§ 11352 (count one)) and possession of a controlled substance for sale (Health & Saf.
Code § 11351 (count two)). It was further alleged that defendant committed each offense
while on bail. (Pen. Code § 12022.1)5 Also, as to each count, three prior prison term
enhancements were alleged. (§ 667.5, former subd. (b).) And, as to each count, it was
alleged that defendant had a prior strike conviction for a violation of section 245,
subdivision (a)(2). An on-bail enhancement was also alleged. (§ 12022.1) By my
5 Undesignated statutory references are to the Penal Code.
2
calculation, defendant’s maximum exposure was 13 to 14 years in state prison, depending
on whether a consecutive sentence was barred on count two by section 654.6
Pursuant to a negotiated resolution, defendant entered a pre-preliminary hearing
plea agreement where he pleaded no contest to count one, sale of a controlled substance,
and admitted two prison priors. In exchange for his plea, count two, the strike allegation,
and bail enhancement were dismissed, and defendant accepted a five-year prison sentence
consisting of a three-year low term sentence on count one and one year for each of the
prior prison term enhancements.
II. Discussion
I agree defendant is entitled to have his section 667.5, former subdivision (b)
sentences dismissed based on S.B. 136 and In re Estrada (1965) 63 Cal.2d 740 (Estrada).
That much is clear.
As to remedy, I fundamentally agree with the application of the remedy in Stamps,
supra, 9 Cal.5th at pages 705-709 as discussed in People v. Hernandez (2020) 55
Cal.App.5th 942 (Hernandez). Based on Stamps, the Hernandez court remanded the
matter to the trial court with the direction that the trial court could withdraw its prior
approval of the plea agreement and so too could the prosecution. (Hernandez, at p. 944;
see also People v. Barton (2020) 52 Cal.App.5th 1145 (Barton) [applying the same
remedy in the context of Assembly Bill No. 1618, which eliminated prior drug trafficking
6 In the factual basis for the plea, the prosecutor said police observed defendant making a
hand-to-hand sale. When he was arrested, he still had 5.59 grams of cocaine on his
person. If a consecutive sentence is not barred by section 654 (and it seems that it may
not be based on the factual basis offered by the prosecution which indicated defendant
still had plenty of product available to sell), defendant was exposed to a 14-year sentence
calculated as follows: Upper term of 5 years count one, 1 year consecutive on count two
(one-third the midterm), doubled for the strike to 12 years, plus 2 years for the on-bail
enhancement. If section 654 applies to count two, then defendant’s maximum exposure
was 13 years.
3
enhancement sentences].) As the Hernandez court recognized, “ ‘[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.” ’ ” (Hernandez, at p. 948, quoting People v. Segura (2008) 44 Cal.4th 921,
929-930.)
The Hernandez court went on to note that Stamps examined the legislative intent
behind the bill at issue there, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393)
(allowing sentencing courts discretion to strike or dismiss serious felony conviction
enhancements under section 1385), and noted that Stamps stated: “ ‘none of the
legislative history materials mention plea agreements at all.’ ” (Hernandez, supra, 55
Cal.App.5th at p. 953, quoting Stamps, supra, 9 Cal.5th at p. 702.) The Hernandez court
emphasized the observation in Stamps: “ ‘[t]hat [S.B.]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.’ ”
(Hernandez, at p. 954, quoting Stamps, at p. 704.) The same holds true for prison prior
enhancements eliminated in S.B. 136. The bill and legislative history are silent
concerning plea bargained sentences.7
7 See the pertinent discussion of the legislative purpose in the maj. opn., ante, at p. 8, fn.
3. That purpose focused only on punishment related to the prison prior enhancement. It
did not include punishment as to offenses, strikes, or other enhancements that are
dismissed as part of a plea agreement. For this reason, and others I will discuss further
post, I disagree with the courts that find the legislative purpose supports a sentencing cap
on remand. (See People v. Joaquin (2021) 58 Cal.App.5th 173, 178 (Joaquin); Griffin,
supra, 57 Cal.App.5th at pp. 1095-1096, 1097.) In S.B. 136, the Legislature did not seek
to affect sentences other than the one-year sentences previously authorized for prison
prior enhancements.
4
Like the majority here, the defendant in Hernandez argued that S.B. 1393 and S.B.
136 are different, and the Stamps remedy should not apply in the context of S.B. 136,
because S.B. 1393 provided new discretion to trial courts to strike or dismiss serious
felony convictions, whereas S.B. 136 requires no exercise of discretion because it
eliminated the punishment for prior prison terms. (Hernandez, supra, 55 Cal.App.5th at
p. 957.) The Hernandez court responded: “Such a distinction is not the dispositive issue
in this case.” (Ibid.) It noted that both Stamps, and another case upon which the majority
here relies, Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris),8 “focused on the
history of the [statutory] 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 modification’ to determine whether the district attorney can
withdraw from the plea agreement.” (Hernandez, at p. 957.) I agree with this
observation as far as it goes, but it does not fully address the argument that S.B. 1393 and
S.B. 136 are different. What is missing is a recognition of the trial court’s sentencing
discretion and discretion to withdraw consent from plea agreements.
Not only did the Legislature display no intent to change the law regarding trial
courts lacking discretion to unilaterally modify plea agreements, there is also nothing in
S.B. 136 establishing an intent to deprive trial courts of the ability to withdraw consent
from plea agreements – judicial authority that is also the product of long-standing law.
Section 1192.5, the very provision the Stamps court sought to harmonize in establishing
its remedy, gives the sentencing court the discretion to withdraw consent from a plea
agreement. The Stamps court was careful to point this out. (See Stamps, supra, 9 Cal.5th
8 In Harris, supra, 1 Cal.5th 984, our high court rejected the Attorney General’s
argument that Proposition 47 could not be applied to sentences resulting from plea
agreements. The court concluded that statutory language in Proposition 47—“whether by
trial or plea”—indicated the electorate intended to include within its scope sentences that
were the result of negotiated agreements. (Id. at pp. 989-993.)
5
at p. 708.) As our high court observed, another panel of this court previously provided a
list of the circumstances that might justify a trial court’s withdrawal of consent. “
‘Generally, a trial court may exercise its discretion to withdraw approval of a plea
bargain because: (1) it believes the agreement is “unfair” [citation]; (2) new facts have
come to light; (3) the court has become more fully informed about the case; or (4) when,
after further consideration, the court concludes that the agreement is “ ‘ “not in the best
interests of society” ’ ” [citation]. But this list is not exhaustive.’ ” (Stamps, at p. 706,
quoting People v. Mora-Duran (2020) 45 Cal.App.5th 589, 595-596 (Mora-Duran),
italics added.)
A trial court’s discretion in this regard is critical to the administration of justice.
As the court in Stamps noted: “In exercising their discretion to approve or reject
proposed plea bargains, trial courts are charged with the protection and promotion of the
public’s interest in vigorous prosecution of the accused, imposition of appropriate
punishment, and protection of victims of crimes. [Citation.] For that reason, a trial
court’s approval of a proposed plea bargain must represent an informed decision in
furtherance of the interests of society . . . .” (Stamps, supra, 9 Cal.5th at p. 706, italics
added.) Thus, every time a trial court approves of a negotiated resolution, it impliedly
determines the agreement is in furtherance of the interests of society in the locale where
that court sits.
Our high court in Stamps also made clear that trial “courts have broad discretion to
withdraw their approval of negotiated pleas.” (Stamps, supra, 9 Cal.5th at p. 706.)
Indeed, “[t]he court’s authority to withdraw its approval of a plea agreement has been
described as ‘near-plenary.’ ” (Id. at p. 708, citing Mora-Duran, supra, 45 Cal.App.5th
at p. 595; People v. Stringham (1988) 206 Cal.App.3d 184, 195.) Here, while S.B. 136
applies retroactively, there is nothing in the bill that suggests resentencings by the trial
court during which the court would have the opportunity to exercise this long-standing
discretion have been eliminated. Despite this, the majority skips that step by simply
6
ordering the enhancements stricken. (Maj. opn., ante, at p. 13.) In doing so, the majority
has effectively “whittle[d] down” defendant’s sentence and otherwise left his plea
bargain intact without allowing the trial court to exercise its discretion to determine
whether the reduced sentence furthers the interests of society in the county where the
court sits and withdraw its consent to the agreement upon a determination it does not—
something it appears our high court in Stamps sought to avoid. (Stamps, at p. 706.)
This case should be remanded for resentencing. At that time, the trial court could
very well conclude that the plea agreement, sans the two years for the prison priors, is no
longer in the interests of society given defendant’s status as a recidivist, his commission
of the instant offense while on bail, and other aspects of his criminal history not
otherwise disclosed in the record before us. Should the court withdraw its consent, it
must then “restore the parties to the status quo ante.” (Stamps, supra, 9 Cal.5th at
pp. 706-707.) In this context, “ante” must mean before the plea, meaning defendant
would then be exposed to a sentence that involves the count, strike, and bail enhancement
that were dismissed.
I must note that I am not in complete agreement with the Hernandez remedy. The
Hernandez court concluded that it was necessary to dismiss the prison prior
enhancements on remand and then the court and prosecution may choose to withdraw
consent to the original plea agreement. (Hernandez, 55 Cal.App.5th at pp. 944, 960.) I
agree that, in the event the trial court determines the reduced sentence remains in the
interests of society and does not withdraw its consent, the prosecution may withdraw its
consent. But I depart from Hernandez to the extent it held the prison priors must be
automatically dismissed on remand. For the same reason, I disagree with the majority’s
conclusion that the sentences defendant is serving for the two prison priors became
automatically unauthorized after S.B. 136. (See maj. opn., ante, at p. 9, citing People v.
Scott (1994) 9 Cal.4th 331, 354 (Scott).)
7
I see it differently. “[A] sentence is generally ‘unauthorized’ where it could not
lawfully be imposed under any circumstance in the particular case.” (Scott, supra, 9
Cal.4th at p. 354.) This definition of unauthorized necessarily looks back to the original
imposition of the sentence. Here, defendant’s sentence was authorized when it was
imposed. And, but for his appeal seeking Estrada relief, he would still be serving that
authorized sentence and this case would not be before us. Thus, the sentence of a person
in defendant’s position remains authorized if he or she wants to preserve the benefit of
the original bargain instead of facing increased exposure should the court or prosecution
withdraw consent from the original agreement.9 But if a defendant insists on S.B. 136
relief, a resentencing must take place at which the prison prior sentences would no longer
be part of the defendant’s sentencing exposure but sentences related to dismissed charges
and allegations could.
This approach is consistent with Stamps, which emphasized that it was the
defendant’s choice whether to continue to seek relief under S.B. 1393 on remand, given
that the trial court or prosecution might withdraw their consent. (Stamps, supra, 9
Cal.5th at p. 708.) The court explained: “ ‘we anticipate that there will be defendants
who determine that, notwithstanding their entitlement to seek relief based on the change
in the law, their interests are better served by preserving the status quo. That
determination, however, lies in each instance with the defendant.’ ” (Ibid.) The court
continued: “While it is true that defendant has consistently argued on appeal that [S.B.]
1393 should retroactively apply to him, his argument has always been coupled with his
9 For the same reason, I disagree with those courts that conclude the original agreement
is unenforceable. (Joaquin, supra, 58 Cal.App.5th at p. 175; Griffin, supra, 57
Cal.App.5th at p. 1092; Barton, supra, 52 Cal.App.5th at pp. 1155, 1159.) I see the
original agreement as voidable by defendant, not void. But as I explain post, either way
it has no impact on the trial court’s discretion to accept or withdraw consent from the
original agreement on remand.
8
claim that the proper remedy should be to simply allow the trial court to reduce his
sentence by five years while otherwise maintaining the remainder of the plea agreement.
Now that we have rejected his proposed remedy, defendant’s calculus in seeking relief
under [S.B.] 1393 may have changed. Defendant should be allowed to make an informed
decision whether to seek relief on remand.” (Ibid.) Here, too, defendant’s calculus may
change if this matter were appropriately remanded for resentencing and the trial court or
prosecution then withdraw their consent.
Some courts have observed that our high court in People v. Collins (1978) 21
Cal.3d 208 (Collins), capped the defendant’s potential sentencing exposure on remand to
the aggregate term originally bargained for. (See Joaquin, supra, 58 Cal.App.5th at
p. 178 [agreeing with the remedy in Hernandez except requiring a cap]; Griffin, supra, 57
Cal.App.5th at p. 1097 [same]; People v. France (2020) 58 Cal.App.5th 714, 720, 730,
fn. 7 [disagreeing with the remedy in Hernandez].) In Collins, the Legislature
decriminalized the offense to which the defendant pleaded in exchange for the dismissal
of numerous other counts that remained viable. The court held that remand was
appropriate to allow the prosecution to proceed on those other counts, but capped the
defendant’s sentencing exposure to the amount of time he originally agreed to. (Collins,
at pp. 211-212, 215 [noting that to simply dismiss the case would result in a “bounty in
excess of that to which [the defendant] is entitled”].) The majority relies on Collins to
support its reasoning. (Maj. opn., ante, at pp. 11-13.) However, three circumstances lead
me to believe that Stamps has impliedly abrogated the Collins remedy: (1) the Stamps
court recognized that the status quo ante must be restored when a trial court withdraws
consent, and in my view, putting a defendant in a position where he or she is exposed to
no more time than was received as part of the negotiated resolution does not return the
parties to the status quo before the agreement; (2) Stamps allows a defendant to make an
informed decision on remand about seeking the ameliorative relief of a new enactment to
avoid additional sentence exposure; and (3) the Stamps court imposed no sentencing cap
9
on remand and never even mentioned the Collins cap.10 Indeed, in my view, the fact the
Collins cap was not mentioned in Stamps speaks volumes. (See Hernandez, supra, 55
Cal.App.5th at p. 959 [noting that while Collins “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”].) Moreover, that
there be no cap seems appropriate on a practical level. If there is a cap, a defendant could
10 Not once did the Stamps court say anything even remotely suggesting a cap is
appropriate on remand. All the Stamps court said about Collins is the following:
“Pursuant to a plea bargain, Collins pled guilty to a single count of oral copulation under
former section 288a in exchange for dismissal of 14 other felony counts. Prior to
sentencing, the Legislature repealed former section 288a, decriminalizing ‘the act of oral
copulation between consenting, nonprisoner adults . . . .’ [Citation.] Collins reasoned the
decriminalization of oral copulation applied retroactively under Estrada because the
conviction was not yet final, and the defendant could not be sentenced for that offense.
[Citation.] However, Collins concluded the prosecution was entitled on remand to
reinstate the dismissed counts because, ‘[w]hen a defendant gains total relief from his
vulnerability to sentence, the state is substantially deprived of the benefits for which it
agreed to enter the bargain.’ [Citation.] Collins reasoned: ‘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
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.’ ” (Stamps, supra, 9 Cal.5th at pp. 703-704, quoting Collins, supra, 21 Cal.3d
at pp. 211, 212-213.)
10
refuse to plead to any restructured term, roll the dice, and go to trial assured that if
convicted, no greater sentence would be imposed than he originally bargained for.11
The majority takes a different approach. My colleagues simply strike the prison
enhancement and order that defendant be resentenced to the reduced term. Their
approach is based primarily on two premises I believe to be erroneous: (1) defendant’s
sentence is unauthorized, and (2) there is a distinction between the Stamps treatment of
S.B. 1393 and the remedy for S.B. 136 because the decisionmaker is somehow different
in the context of S.B. 136.
I have already addressed the first premise. But even if I am wrong on that, the
trial court should still have discretion to withdraw its consent from the agreement upon a
finding that the reduced sentence does not further the interests of society.
As to the second premise, the majority reasons that, under S.B. 1393, “the
decisionmaker is the trial court, exercising its discretion” in deciding whether to strike or
dismiss a serious felony conviction enhancement. (Maj. opn., ante, at p. 7; see also
People v. Andahl (2021) 62 Cal.App.5th 203, 214-215.) The majority then writes: “In
contrast, in [S.B.] 136, the Legislature is the decision maker; the Legislature has declared
that those who served a prior prison term for offenses other than certain sexually violent
offenses shall no longer be subject to the prior prison term enhancement under section
667.5, subdivision (b).” (Maj. opn., ante, at pp. 7-8.) The majority adds: “The court
merely acts as the vessel through which the Legislature accomplishes and effects its
directive.” (Id., ante, at p. 9.) I disagree.
11 The court in Griffin, supra, 57 Cal.App.5th 1088, seems to have recognized this
problem, but did not address it. The Griffin court wrote: “We do not address a situation
where the parties fail to enter into a new plea agreement after a post-[S.B.] 136 remand,
and the defendant is convicted at trial. Whether the trial court could sentence that
defendant to a term in excess of the originally agreed upon sentence, and what
circumstances might affect that determination, are questions well beyond the scope of the
present appeal.” (Id. at p. 1097, fn. 6.)
11
The Legislature did not decide what any defendant’s sentence should be in
enacting S.B. 136. It only decided that defendants should no longer be exposed to the
one-year prior prison term enhancements. Consequently, the trial court is not a mere
“vessel” (maj. opn., ante, at p. 8), because it must resentence the defendant and exercise
discretion in doing so. In other words, the trial court remains the decisionmaker as to a
defendant’s sentence.
If this case were remanded for resentencing, as it should be, the trial court would
be tasked with determining whether a reduced sentence is in the interests of society or
whether it should withdraw consent. In considering that question, the trial court would
consider the possible sentences that could be imposed for the dismissed count, strike
conviction, and on-bail enhancement, in addition to factors in mitigation and aggravation
as set forth in the California Rules of Court. Thus, the “in the furtherance of the interests
of society” decision in this context is every much a discretionary decision as determining
whether it is in “the furtherance of justice” to dismiss or strike a prior serious felony
conviction under section 1385, subdivision (a) as the Legislature authorized in S.B. 1393.
In my view, the difference the majority sees between S.B. 1393 and S.B. 136 is
nonexistent.
The majority also relies on Doe v. Harris (2013) 57 Cal.4th 64 (Doe) for the
following: “the general rule in California is that a plea agreement is ‘ “deemed to
incorporate and contemplate not only the existing law but the reserve power of the state
to amend the law or enact additional laws for the public good and in pursuance of public
policy.” ’ ” (Id. at p. 73.) But that quote only partially articulates the rule in Doe and
ignores the issue presented to our high court in that case.
In Doe, the California Supreme Court answered a question directed to it by the
Ninth Circuit Court of Appeal. Pending before the Ninth Circuit was litigation
commenced by Doe in which he sought to avoid public disclosure of his sex offender
registration required by post-conviction amendments to California’s sex offender
12
registration laws enacted in Megan’s Law. (Doe, supra, 57 Cal.4th at pp. 66-67.) He
asserted this change in the law violated his plea agreement. (Ibid.) Our high court
understood the Ninth Circuit’s question as: “Under California law of contract
interpretation as applicable to the interpretation of plea agreements, does the law in effect
at the time of a plea agreement bind the parties or can the terms of a plea agreement be
affected by changes in the law?” (Id. at p. 66, italics added.) The court answered: “We
respond that the general rule in California is that the plea agreement will be ‘ “deemed to
incorporate and contemplate not only the existing law but the reserve power of the state
to amend the law or enact additional laws for the public good and in pursuance of public
policy . . . .” ’ [Citation.] That the 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.” (Ibid., italics added.)
As can be seen by the italicized language, the question resolved in Doe related to
whether subsequent changes in the law are binding on the parties. Our high court’s
holding that the parties are not insulated from changes the Legislature intends to apply to
them does not address a trial court’s discretion to withdraw consent from the agreement
on remand after a change in the law. The Doe court simply was not asked to decide
whether the change in the law binds the trial court when there are other counts or
allegations available to which the court can sentence a defendant. And nothing in S.B.
136 suggests the Legislature intended to retroactively strip the sentencing court of its
sentencing discretion, reverse the court’s implied finding that the sentence it originally
imposed was in the interests of society, and deprive the court of considering whether a
new sentence, sans the prison priors, remains in the interests of society. Without such a
legislative provision in the changed law, the trial court must still approve of the of the
new sentence.
I disagree with other aspects of the majority’s reasoning. The majority asserts that
the Legislature is presumed to know that: “(1) Senate Bill No. 136 retroactively renders
13
sentences in nonfinal cases unauthorized; and (2) courts must strike an unauthorized
sentence, even with respect to plea agreements. [Citations.] Thus, in considering the
question of legislative intent -- i.e., whether the Legislature intended the change in the
law to apply to plea agreements [citation] -- it seems logical that, because “ ‘ “the
Legislature is presumed to have had knowledge of existing domestic judicial decisions
and to have enacted and amended [Senate Bill No. 136] in the light of such decisions as
have a direct bearing upon [the statute]’ [citation], the Legislature intended for the
unauthorized sentence created by Senate Bill No. 136 to apply to plea agreements within
the meaning of Doe unless otherwise expressed.” ’ ” (Maj. opn., ante, at pp. 9-10.) But
this misapprehends the scope of Doe, which cannot be read to prohibit trial courts from
exercising their discretion to withdraw consent from a plea agreement as the result of
S.B. 136. To the contrary, Doe’s emphasis on the fact that the change in the law is
intended to apply to the parties only bolsters the conclusion I reach here.
Continuing this argument, the majority relies on Harris, supra, 1 Cal.5th 984.
(Maj. opn., ante, at p. 10.) In my view, Harris also bolsters my analysis. As noted, in
Harris our high court identified specific language in Proposition 47 applying its
provisions to sentences resulting from pleas and thereby signaling the electorate’s intent
to apply those provisions in the plea bargaining context. (See fn. 5, ante.) Again, had the
Legislature included a provision in S.B. 136 indicating its intent to apply it retroactively,
including to sentences that were the result of a plea, then that legislative language would
deprive the trial court of its discretion related to resentencing defendant. The Legislature
would have the authority to do this, and in that situation, I suppose one could say the
Legislature is the decisionmaker and the trial court is a mere “vessel.” But that is not
what the Legislature did. Nothing the Legislature did in enacting S.B. 136 changed long-
standing law related to a trial court’s ability to accept plea agreements and withdraw its
consent from such agreements at resentencing in the exercise of its discretion.
14
III. Conclusion
Every day, trial courts preside over negotiated resolutions between the prosecution
and defense. As our high court has noted, trial courts have the duty to make sure the
sentence agreed upon furthers the interests of society in light of “the public’s interest in
vigorous prosecution of the accused, imposition of appropriate punishment, and
protection of victims of crimes.”12 (Stamps, supra, 9 Cal.5th at p. 706.) In a
resentencing required by a change in the law, that responsibility is unchanged. Here,
based on no authority I can discern, the majority determines no resentencing is required
and reduces defendant’s sentence from five years to three years, when, from the trial
court’s perspective, that sentence might not have been in furtherance of the interests of
society in the county where that court sits. I cannot agree with this remedy.
Accordingly, I respectfully dissent.
/s/
MURRAY, J.
12 Sale of controlled substances is not a victimless crime. Street sales happen in
neighborhoods and detract from the quality of life of all those who reside there.
15