People v. McLarney CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD277868
- Trial judge
- Laura W. Halgren
- Outcome
- modified — Sentence modified and case remanded with directions.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Truc T. Do
Analysis
The trial court denied McLarney's motion to strike three prison priors under Senate Bill 136, resulting in a six-year prison sentence. The Court of Appeal vacated the sentence and remanded with directions to strike the priors and allow the parties to file motions regarding the plea agreement, declining to rule on the prosecutor's right to withdraw.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to strike prison priors under Senate Bill 136“The parties properly agree the prison priors are now invalid following the enactment of Senate Bill No. 136 and that they must be stricken.” | unclear | error | agree with court The appellate court accepted the parties' stipulation that the priors were invalid under SB 136, effectively finding the trial court's denial erroneous as a matter of law. |
Remedy for invalid priors (whether to affirm as modified or remand for plea withdrawal)“We think the better approach here is to remand with directions to strike the priors and to allow the parties on remand to bring such motions as they deem appropriate.” | unclear | error | agree with court The court found the issue of plea withdrawal speculative and declined to apply the conflicting precedents (Hernandez vs. Matthews/France) to affirm the judgment as modified, opting instead for a remand to allow the trial court to handle potential motions. |
Authorities
- relied: People v. Hernandez (2020) 55 Cal.App.5th 942 — Postjudgment law changes that reduce sentences for persons who have pleaded guilty should allow the prosecutor or the court to withdraw from the plea agreement.
- relied: People v. Matthews (2020) 47 Cal.App.5th 857 — Postjudgment law changes benefiting defendants do not trigger a right of the court or the prosecutor to withdraw from the plea agreement.
- relied: People v. France (2020) 58 Cal.App.5th 714 — Postjudgment law changes benefiting defendants do not trigger a right of the court or the prosecutor to withdraw from the plea agreement.
The appellate opinion: sound with gaps — The opinion is sound with gaps because it reaches a defensible procedural result by avoiding a split in authority on plea withdrawal, but it fails to explicitly address the binding effect of the conflicting unpublished or recently published cases cited by the parties, relying instead on the speculative nature of the DA's intent to withdraw.
How this analysis was made · dispute it
unusual dispositionAfter McLarney pleaded guilty to violating a domestic restraining order and admitted three prison priors, he failed to appear for sentencing, and the trial court denied probation, imposed a six-year prison term (upper term plus three one-year prison prior enhancements), and later denied his motion to strike the prison priors under Senate Bill No. 136. The Court of Appeal held the priors must be stricken, vacated the sentence, and remanded with directions to strike the priors and to permit the parties to bring any motions regarding the plea agreement, expressly declining to decide whether the prosecution may withdraw from the plea.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of defendant's post-judgment motion to strike three Penal Code section 667.5, subdivision (b) prison prior enhancements under Senate Bill No. 136“In this appeal, the parties properly agree the prison priors are now invalid following the enactment of Senate Bill No. 136 and that they must be stricken.” | unclear | error (law misapplied) | agree with court Senate Bill No. 136 limited section 667.5(b) enhancements to sexually violent offenses, and the opinion treats the judgment as nonfinal (constructive notice of appeal granted), so under settled retroactivity principles the enhancements are invalid; both parties conceded the point and the court's conclusion follows. |
Imposition of a six-year prison sentence consisting of the three-year upper term plus three one-year prison prior enhancements“The sentence is vacated. The case is remanded to the trial court with directions to strike the three prison priors alleged under section 667.5, subdivision (b).” | unclear | error (law misapplied) | agree with court Because the three enhancements are no longer authorized, the sentence as imposed cannot stand; vacating it and remanding for the trial court to strike the priors and address any plea-related motions is a defensible remedy, though the court chose remand rather than the simple modification defendant sought without citing the controlling Supreme Court framework. |
Authorities
- relied: People v. Hernandez (2020) 55 Cal.App.5th 942 — Cited by the People for the proposition that a post-judgment ameliorative law change reducing a bargained-for sentence allows the prosecution or court to withdraw from the plea; the court distinguished it because Hernandez involved a stipulated sentence accepted under section 1192.5, whereas here there was no stipulation to a prison term.
- relied: People v. Matthews (2020) 47 Cal.App.5th 857 — Cited by defendant for the proposition that post-judgment law changes benefiting a defendant do not give the court or prosecutor a right to withdraw from the plea agreement; the court noted but did not resolve the conflict.
- relied: People v. France (2020) 58 Cal.App.5th 714 — Cited by defendant for the proposition that striking now-invalid enhancements from a negotiated sentence does not entitle the prosecution to withdraw from the plea; the court noted it (review granted) without deciding the issue.
- missed: People v. Stamps (2020) 9 Cal.5th 685 — When an ameliorative sentencing law applies retroactively to a nonfinal judgment entered on a plea bargain, the proper remedy is remand to allow the defendant to seek relief, with the prosecution and court permitted to withdraw approval of the plea if the court grants it; the court should have addressed this binding authority on the remedy question it discussed.
- missed: Doe v. Harris (2013) 57 Cal.4th 64 — Plea agreements are deemed to incorporate and are subject to subsequent changes in the law; the general rule is that the Legislature may alter the consequences of a plea bargain without violating the agreement, which bears directly on whether striking the priors breaches the bargain.
The appellate opinion: sound with gaps — The result—vacating the sentence and remanding with directions to strike the invalid prison priors while leaving plea-related motions to the trial court—is defensible and consistent with the parties' concession. But the court expressly declined to resolve the remedy dispute and did not cite People v. Stamps, binding Supreme Court authority that directly addresses the remand procedure when an ameliorative law affects a negotiated sentence, nor Doe v. Harris on the incorporation of later law changes into plea agreements.
Opinion
Filed 4/21/21 P. v. McLarney CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077473
Plaintiff and Respondent, v. (Super. Ct. No. SCD277868)
RYAN P. MCLARNEY, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Sentence modified and case remanded with directions. Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent. Ryan P. McLarney pleaded guilty to violating a domestic restraining order with a previous conviction within seven years (Pen. Code,1 § 166, subds. (c)(1) & (4)). He admitted three prison priors (§ 667.5, subd. (b)). As part of the agreement, the prosecutor agreed to dismiss the alleged strike prior (§ 667, subds.(b)-(i)) and to not oppose local time as a condition of probation with 365 days in local custody. McLarney failed to appear for sentencing. When he was later brought to court, the trial judge denied probation and sentenced McLarney to a term of six years in prison (the three-year upper term, plus three years for the prison priors). McLarney made a subsequent motion to strike the prison priors pursuant to Senate Bill No. 136. The trial court denied the motion. In June 2020, this court granted McLarney’s request for a constructive notice of appeal. McLarney filed an appeal from the order denying his motion to strike the prison priors. In this appeal, the parties properly agree the prison priors are now invalid following the enactment of Senate Bill No. 136 and that they must be stricken. They disagree as to the manner in which this court handles the striking of the priors. McLarney argues we should simply strike the priors, modify the sentence, and affirm as modified. The People argue we should remand the case to the trial court with directions to strike the priors and to allow the People to withdraw from the plea agreement if they choose to do so. We opt for a different approach. As we will discuss below, the law is unsettled as to the ability of the People or the court to withdraw from a plea agreement when a post- 1 All further statutory references are to the Penal Code. 2 sentencing law change reduces the punishment that the court imposed based on the plea agreement.
DISCUSSION2 The parties properly agree the court must strike the three prison priors in light of subsequent legislative changes. Accordingly, we will not discuss the state of the law regarding prison priors. The issue in this appeal is what is the proper remedy for the change in the status of such priors. The People contend the court should remand the case to the trial court with directions to strike the three prison priors and to allow the District Attorney to withdraw from the plea agreement if that office deems it appropriate. The People rely on People v. Hernandez (2020) 55 Cal.App.5th 942, 946 (Hernandez), review granted January 27, 2021, S265739, among other cases for the proposition that postjudgment law changes that reduce the sentences for persons who have pleaded guilty should allow the prosecutor or the court to withdraw from the plea agreement. McLaney, on the other hand, argues we should simply strike the prison priors, modify the judgment, and affirm. McLarney relies on a different line of cases holding such postjudgment law changes benefitting defendants, do not trigger a right of the court or the prosecutor to withdraw from the plea agreement. (People v. Matthews (2020) 47 Cal.App.5th 857; People v. France (2020) 58 Cal.App.5th 714, review granted Feb. 24, 2021, S266771.) The Attorney General’s reliance on Hernandez is questionable in this case. In Hernandez, the parties stipulated to the sentence and the court accepted the limitation on its sentencing power (§ 1192.5). In this case, the prosecution did not oppose local time as a condition of probation, with only 2 The facts of the underlying crime are not relevant to the resolution of this appeal. We have omitted the usual statement of facts. 3 the stipulation to 365 days in local custody. Because of McLarney’s failure to appear for sentencing, the trial court denied probation and imposed the six- year term. There was never a stipulation to a prison term. We find the question of the District Attorney’s right to withdraw from the plea agreement on remand to be entirely speculative. We understand the Attorney General is seeking our approval of the proposition the prosecutor should have the right to withdraw. There has not been such a request from the District Attorney. We note the prosecution was content to settle for a probationary sentence rather than take the case to trial. If the prosecutor is allowed to withdraw from the agreement, then McLarney would be entitled to a jury trial. The three-year upper term imposed by the trial court is already greater punishment than that for which the prosecution had bargained. It is not at all clear the prosecutor would seek to withdraw from the agreement that produced a greater sentence than the People originally accepted. In short, we decline to weigh in on an uncertain body of law where it is somewhat doubtful the issue will arise on remand. We think the better approach here is to remand with directions to strike the priors and to allow the parties on remand to bring such motions as they deem appropriate. If there is no withdrawal from the guilty plea agreement, the court should enter a modified judgment reflecting the reduced sentence. If the parties bring motions with regard to the plea agreement, we are confident the trial court will examine such motions carefully and apply the law appropriately. If motions regarding the plea are brought on remand, we express no opinion regarding the merits of any challenge to the agreement.
4 DISPOSITION The sentence is vacated. The case is remanded to the trial court with directions to strike the three prison priors alleged under section 667.5, subdivision (b). The court shall permit the parties to bring such motions regarding the sentence as they deem appropriate. We express no opinion regarding the appropriate ruling on such motions. If the court declines to set aside the plea agreement then the court shall impose judgment consistent with the views expressed in this opinion and amend the abstract of judgment to reflect the modified sentence.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.