by David M. Reutter

The Court of Appeal of California, First District, Division Three, held a trial court erred by failing to hold a resentencing hearing in the defendant’s presence after granting a motion to strike enhancements for prior prison sentences (“prison priors”). The Court further concluded that a prosecutor is constrained from withdrawing from the plea agreement at resentencing due to the sentence reductions.

Steven L. Montgomery, Jr., entered into a plea agreement to plead no contest to oral copulation, injuring a domestic partner, false imprisonment, assault with a deadly weapon, and admitted to a great bodily injury as an enhancement. The prosecutor dismissed a sex offender enhancement and another assault charge. Montgomery also admitted to two prison priors within the meaning of former Penal Code. § 667.5(b). The parties agreed to, and the trial court imposed, an 18-year prison sentence, which included one consecutive year for each prison prior.

During its 2021-2022 session, the California Legislature passed Senate Bill No. 483 (“SB 483”), which invalidated most prison priors imposed before January 1, 2020. The trial court dismissed both one-year prison priors but did not conduct a new sentencing hearing in Montgomery’s presence. Montgomery timely appealed, arguing error and seeking an in-person hearing while represented by an attorney who could present evidence.

The Attorney General did not oppose that argument, but it contended that “the prosecutor must be permitted to amend or withdraw from the plea agreement, returning the parties to the status quo ante.” On the other hand, Montgomery argued that the prosecution is barred from withdrawing from the plea agreement based on any sentence reduction at the hearing, even sentence reductions based on enactments other than SB 483. The Court agreed with Montgomery.

The Court noted that § 1172.75 of the Penal Code provides that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to” § 667.5(b)—a prison prior—“except for any enhancement imposed for a prior conviction for a sexually violent offense … is legally valid.” § 1172.75(a); see People v. Monroe, 85 Cal. App. 5th 393 (2022). The Court stated that when the Department of Corrections and Rehabilitation (“CDCR”) identifies a person serving a term that includes a prison prior, “the court shall recall the sentence and resentence the defendant.” Quoting Monroe.

The Court explained that “by its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.” Quoting Monroe. A lesser sentence must be imposed, unless a reduced sentence would threaten public safety, but the court may not impose a longer sentence. Monroe; see § 1172.75(d)(1). At the resentencing hearing, the trial court may consider postconviction factors such as the defendant’s disciplinary record, evidence indicating the risk of future violence has diminished, or evidence of circumstances showing the original sentence is no longer in the interests of justice. Monroe; see § 1172.75(d)(3).

The Court then turned to the issue of striking the enhancements and whether the parties remain bound by the terms of the plea agreement. It briefly discussed legal authority that bars courts from unilaterally striking a sentence enhancement while enforcing the other provisions of a plea bargain. See § 1192.5; see also People v. Prudholme, 531 P.3d 341 (Cal. 2023); People v. Stamps, 467 P.3d 168 (Cal. 2020).

However, the Court noted that the constraint on courts is not absolute, stating that a plea agreement incorporates “the reserve power of the state to amend the law.” Doe v. Harris, 302 P.3d 598 (Cal. 2013). That is, a plea agreement “does not have the effect of insulating [the parties] from changes in the law that the Legislature has intended to apply to them.” Id. The critical inquiry rests on legislative intent, according to the Court. Harris v. Superior Court, 383 P.3d 648 (Cal. 2016). The Court observed that an uncodified section of SB 483 contains the Legislature’s expression that “any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement.” Stats. 2021, ch. 728, § 1.

Two California Courts of Appeal have addressed the “extent to which the Legislature has precluded prosecutors from withdrawing from a plea bargain due to sentence reductions following” a § 1172.75 resentencing hearing and reached opposite conclusions, the Court stated. In People v. Carter, 97 Cal. App. 5th 960 (2023), the Fourth District held that the Legislature intended to prohibit prosecutors from withdrawing a plea agreement for any reduction to a sentence, even reductions based on code provisions not enacted by SB 483.

In contrast, in People v. Coddington, 96 Cal. App. 5th 562 (2023), First District, Division One, held that the Legislature did intend to preclude withdrawal when a prison prior is struck, but the prosecutor can withdraw from a plea agreement if the sentence is otherwise reduced. The Court (also First District but Division Three) disagreed with its colleagues in Division One and agreed with the Carter Court.

The Court explained that Carter based its conclusion on the text and legislative history of SB 483. Specifically, § 1175.75(2) provides that trial courts resentencing a defendant must “apply the sentencing rules of the Judicial Council and apply any other changes in the law that reduce sentences or provide for judicial discretion.” Additionally, SB 483’s uncodified section explicitly requires that “any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement.” See Carter. Thus, the Court agreed with the Carter Court’s interpretation that the “Legislature thereby intended to preclude a prosecutor from rescinding a plea agreement due to any sentence reduction at a section 1172.75 hearing.”

The Court also concluded that SB 483 is retroactive in providing relief to all eligible defendants, explaining that SB 483 “intended to correct past sentencing disparities resulting from ‘racial bias’ and to ‘ensure equal justice.’”

Accordingly, the Court reversed the trial court’s order striking the prison priors and remanded for a resentencing hearing that complies with § 1172.75, and the prosecutor may not rescind the plea agreement due to a resulting sentence reduction. See: People v. Montgomery, 100 Cal. App. 5th 768 (2024).

Editor’s note: The California Supreme Court has granted review to settle the conflict in authority. People v. Montgomery, 548 P.3d 597 (Cal. 2024). Pending review, the Court’s opinion in this case may be cited only for its persuasive value and also for the limited purpose of establishing the existence of a conflict in authority that permits trial courts to exercise discretion to choose between sides in the conflict under Auto Equity Sales. Inc. v. Superior Court, 369 P.2d 937 (Cal. 1962).   

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