# People v. Smith CA5

> California Court of Appeal · September 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10586373

## Case

- **Court:** California Court of Appeal
- **Decided:** September 17, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 9/17/24 P. v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F086360
Plaintiff and Respondent,
(Super. Ct. No. F16901823)
v.

CHARLES MICHAEL SHALAU SMITH, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.

Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and
Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

*Before Peña, Acting P. J., Meehan, J. and Snauffer, J.
INTRODUCTION
In 2017, defendant Charlie Michael Smith1 pleaded no contest to attempted
murder (Pen. Code, §§ 187, 664; count 1) and possession of a weapon while incarcerated
(§ 4502; count 2). (Undesignated statutory references are to the Penal Code.) He also
admitted a prior serious felony enhancement allegation (§ 667, subd. (a)), a strike prior
allegation (§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and two prison prior
allegations (§ 667.5, former subd. (b)). Pursuant to the stipulated plea agreement,
defendant was sentenced to a term of 26 years, which consisted of an upper term of 18
years on count 1 (the upper term doubled based upon the strike prior), two years (one-
third the midterm) for count 2, plus five years for the prior serious felony enhancement
(§ 667, subd. (a)), and one year for one of the section 667.5, former subdivision (b)
prison prior enhancements.
In 2022, the California Department of Corrections and Rehabilitation identified
defendant as an individual potentially eligible for resentencing pursuant to Senate Bill
No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483). The trial court indicated it did not
believe defendant was entitled to a full resentencing in light of the plea agreement, but it
struck the prison prior enhancement and resentenced defendant to a term of 25 years.
On appeal, defendant asserts the court erred in failing to conduct a full
resentencing; accordingly, the matter must be remanded and any further reduction of his
sentence on resentencing shall not be a basis for the People or the court to withdraw from
the plea agreement. The People agree that defendant is entitled to a full resentencing, but
they contend if, upon remand, the court alters the parties’ plea agreement by further
reducing defendant’s sentence beyond striking the prior prison term enhancement, they

1The court corrected the record in May 2023 to show defendant’s true name to be Charles
Michael Shalau Smith.

2.
have the option to withdraw from the plea agreement pursuant to People v. Stamps (2020)
9 Cal.5th 685.
We vacate the court’s order and remand for further proceedings consistent with
this opinion.
FACTUAL AND PROCEDURAL HISTORY
Charges, Verdict, and Original Sentence
In March 2016, defendant was charged with committing attempted premeditated
murder of Andrew Bratton (§§ 187, 664; count 1) and possession of a weapon while
incarcerated (§ 4502; count 2). It was also alleged defendant suffered a prior serious
felony conviction within the meaning of section 667, subdivision (a) that also qualified as
a strike prior based on a 2007 burglary conviction (§§ 211, 212.5, subd. (a)), a prior
violent felony conviction (§ 667.5, subd. (a)), and that he served two prior prison terms
that qualified as prior prison term enhancements under section 667.5, former subdivision
(b).
On March 9, 2017, in accordance with a stipulated plea agreement, defendant
pleaded no contest to attempted murder (§§ 187, 664; count 1) and possession of a
weapon while incarcerated (§ 4502; count 2), admitted the prior serious felony and strike
prior enhancements (§§ 667, subd. (a), 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and
admitted both prison prior allegations (§ 667.5, former subd. (b)).2 He was sentenced to
a term of 26 years. The sentence was composed of an upper term of 18 years on count 1
(the upper term doubled based upon the strike prior), two years (one-third the midterm)
for count 2, plus five years for the prior serious felony enhancement (§ 667, subd. (a)),

2Pursuant to the plea agreement, the People struck the allegation the attempted murder
was willful, deliberate, and premeditated and the prior violent felony allegation (§ 667.5, subd.
(a)).

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and one year for one of the section 667.5, former subdivision (b) prison prior
enhancements.3
Resentencing Proceedings
After the passage of Senate Bill 483, the California Department of Corrections and
Rehabilitation (CDCR) identified defendant as an individual potentially eligible for
resentencing. In August 2022, the court held a hearing at which it appointed defendant
counsel. Before the next hearing, defendant filed a brief arguing the court should find
individuals, including defendant, who were sentenced pursuant to a stipulated plea
agreement are eligible for full resentencing under section 1172.75. The People also filed
a brief in which they asserted defendant is entitled to have his prison prior enhancement
stricken because it is now invalid, but the court was without discretion to conduct a full
resentencing hearing.
On May 24, 2023, the court held a hearing during which the People again agreed
defendant was eligible to have his prison prior enhancement stricken, but they asserted
defendant was not entitled to any other relief because the matter was a stipulated plea and
sentence. Defense counsel argued, once the court recalled the sentence and struck the
prison prior enhancement, defendant should be entitled to a full resentencing despite the
fact he was originally sentenced pursuant to a stipulated plea agreement.
The court denied that a full resentencing was appropriate in light of the stipulated
plea agreement. It explained it did not believe “that a stipulated plea should be reversed
in the sense that taken apart, picked because that was something that the parties agreed
on, except to remove that which is no longer a valid prior. To the extent that [defendant]
has one prison prior that is invalid by current law, other than that, this Court does not
believe that any further modifications is [sic] appropriate. The Court does not believe a

3The prior conviction forming the basis for the second prison prior enhancement pursuant
to section 667.5, former subdivision (b) was reduced to a misdemeanor pursuant to Proposition
47 and the related enhancement was dismissed.

4.
stipulated plea agreement should be set aside merely because the defense now wants to
get resentencing. It is not as clear as the defense believes the legislation says. I
understand the desire is to reduce the sentence by removing the prison prior and a full
resentencing when appropriate. This is not one of those cases, so the Court is not
inclined to do that.”
The court struck the section 667.5, former subdivision (b) prison prior
enhancement and otherwise reinstated the terms of the original sentence for a total term
of 25 years.
DISCUSSION
Defendant appeals from the court’s order, asserting the court erred in failing to
conduct a full resentencing. The People agree, but they contend if the court reduces
defendant’s sentence further, the People should have the option to withdraw from the plea
agreement.
I. Standard of Review
“‘“When we interpret a statute, ‘[o]ur fundamental task … is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. … If the language is clear, courts
must generally follow its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’ [Citation.] ‘Furthermore, we
consider portions of a statute in the context of the entire statute and the statutory scheme
of which it is a part, giving significance to every word, phrase, sentence, and part of an
act in pursuance of the legislative purpose.’”’” (People v. Reynoza (2024) 15 Cal.5th
982, 989–990.) “‘An uncodified section is part of the statutory law. [Citation.] “In
considering the purpose of legislation, statements of the intent of the enacting body

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contained in a preamble, while not conclusive, are entitled to consideration. [Citations.]
Although such statements in an uncodified section do not confer power, determine rights,
or enlarge the scope of a measure, they properly may be utilized as an aid in construing a
statute.”’” (Doe v. Superior Court (2023) 15 Cal.5th 40, 69.)
II. Applicable Law
A. Passage of Senate Bill 483 and Enactment of Section 1172.75
In October of 2021, the Governor approved Senate Bill 483, effective on
January 1, 2022, which added section 1171.1 to the Penal Code, subsequently
renumbered as section 1172.75. This section declares: “Any sentence enhancement that
was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5,
except for any enhancement imposed for a prior conviction for a sexually violent offense
as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is
legally invalid.” (§ 1172.75, subd. (a).) The uncodified portion of Senate Bill 483 states,
in part, “It is the intent of the Legislature 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.)
Section 1172.75 establishes a mechanism to provide affected defendants an
avenue for relief from now invalid prison prior enhancements. Subdivision (b) directs the
Secretary of the CDCR and the correctional administrator of each county to “identify
those persons in their custody currently serving a term for a judgment” that includes a
now legally invalid prior prison term enhancement, and to provide the names of such
persons, their dates of birth, and the relevant case numbers or docket numbers to the
sentencing court that imposed the enhancement. (§ 1172.75, subd. (b).) After the court
receives from the CDCR and county correctional administrator the information included
in subdivision (b) of section 1172.75, “the court shall review the judgment and verify that

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the current judgment includes a sentencing enhancement described in subdivision (a),”
and if so, “recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).)
Section 1172.75 provides, when resentencing a defendant, the court must “apply
the sentencing rules of the Judicial Council and apply any other changes in law that
reduce sentences or provide for judicial discretion so as to eliminate disparity of
sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) “The
court may consider postconviction factors, including, but not limited to, the disciplinary
record and record of rehabilitation of the defendant while incarcerated, evidence that
reflects whether age, time served, and diminished physical condition, if any, have
reduced the defendant’s risk for future violence, and evidence that reflects that
circumstances have changed since the original sentencing so that continued incarceration
is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).)
B. Senate Bill 483’s Effect on Stipulated Plea Agreements
When a plea of guilty or nolo contendere “is accepted by the prosecuting attorney
in open court and is approved by the court, the defendant, except as otherwise provided in
this section, cannot be sentenced on the plea to a punishment more severe than that
specified in the plea and the court may not proceed as to the plea other than as specified
in the plea.” (§ 1192.5, subd. (b).) However, “entering into a plea agreement does not
insulate the parties ‘from changes in the law that the Legislature has intended to apply to
them.’” (Harris v. Superior Court (2016) 1 Cal.5th 984, 991.)
In Harris, the California Supreme Court held the People are not entitled to set
aside a plea agreement when a defendant seeks to have his sentence recalled under
Proposition 47. (Harris v. Superior Court, supra, 1 Cal.5th at p. 993.) In reaching its
conclusion, Harris noted the electorate, in passing Proposition 47, which reduced certain
felonies to misdemeanors, expressly stated section 1170.18 governs someone “‘serving a
sentence for a conviction, whether by trial or plea,’” of one of the affected felonies.

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(Harris, at p. 991.) Harris concluded “[t]he italicized language makes it clear that the
provision applies to someone like defendant who was convicted by plea.” (Ibid.) That is,
“[b]y expressly mentioning convictions by plea, Proposition 47 contemplated relief to all
eligible defendants.” (Ibid.) The Harris court further concluded, “[t]he 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.” (Id. at p.
992.) And permitting the People to withdraw from the plea agreement would be “at odds
with” one of Proposition 47’s primary purposes “to reduce the number of nonviolent
offenders in state prisons, thereby saving money and focusing prison on offenders
considered more serious under the terms of the initiative.” (Ibid.) Thus, Harris held the
“unambiguous language of section 1170.18 and the expressed intent of Proposition 47”
established the People could not withdraw from a stipulated plea agreement based upon
changes to it resulting from Proposition 47. (1 Cal.5th at p. 992.)
In contrast, in People v. Stamps, supra, 9 Cal.5th 685, the defendant entered into a
plea agreement for a specified term that included a prior serious felony enhancement
(§ 667, subd. (a)). (Stamps, at p. 693.) While his appeal was pending, a new law—
Senate Bill No. 1393 (2017–2018 Reg. Sess.)—went into effect permitting the trial court
discretion to strike a serious felony enhancement in furtherance of justice (§ 1385, subd.
(a)), which it was not previously authorized to do. (9 Cal.5th at p. 693.) The California
Supreme Court held the new law applied to the defendant retroactively, and the matter
needed to be remanded to the trial court. (Id. at pp. 692, 699.) However, unlike in
Harris, the Stamps court rejected the defendant’s contention that the court was authorized
to exercise its discretion to strike the enhancement but otherwise maintain the plea
bargain. (Id. at p. 701.) In so holding, the Stamps court reasoned, “[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

8.
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.” (Id. at p. 702.) Thus, “[n]othing in the language and legislative
history of Senate Bill 1393 suggests an intent to modify 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.” (Id. at p. 704.) “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.) Accordingly, the Stamps court held the defendant on remand
could seek the court’s exercise of discretion under the amended law, but if the court
chooses to strike the enhancement, its decision could have consequences to the plea
agreement. (See Stamps, at pp. 705–708.)
There is currently a split of authority regarding whether the People may withdraw
from a plea agreement if the trial court exercises its discretion to further reduce a
defendant’s sentence beyond striking now invalid prior prison term enhancements at a
section 1172.75 resentencing. In People v. Coddington (2023) 96 Cal.App.5th 562, the
trial court granted the defendant’s request to strike his prior prison term enhancement
under section 1172.75 after he was convicted pursuant to a plea agreement. (Coddington,
at pp. 565, 567.) On appeal, the First District Court of Appeal, Division One, held under
section 1172.75 and the full resentencing rule, the defendant was entitled to a remand and
to seek further reductions of his prison term under recent legislation affecting other
aspects of his conviction. (96 Cal.App.5th at pp. 568–569.) The court also held,
although the defendant could seek additional sentencing relief on remand, if the trial
court exercised its discretion to further reduce his sentence, the prosecution could
withdraw its assent to the plea agreement. (Id. at pp. 565, 569, 572.) In so holding,
Coddington determined that “[a]lthough the Legislature clearly intended that the striking
of a sentencing enhancement for a prior prison term would not provide a basis for

9.
rescinding a plea agreement, this intent cannot be understood to govern other possible
sentence reductions merely because they happen to occur during the same resentencing.”
(Id. at p. 565.) Coddington concluded the statute’s intent to eliminate disparity of
sentences and to promote uniformity of sentencing would be thwarted if prosecutors
could not withdraw assent to a plea bargain for other changes reducing sentences that
were part of a plea bargain. (Id. at p. 571.) It held, “[u]nder such an interpretation,
prosecutors would have no Stamps remedy when a defendant is being resentenced, even
though they would retain such a remedy for defendants being sentenced prospectively.”
(Ibid.) It further reasoned Senate Bill 483 was not “meant to overrule Stamps for all
sentence reductions that are granted in connection with a request to eliminate prison
priors.” (Ibid.)
In People v. Carter (2023) 97 Cal.App.5th 960, the Fourth District Court of
Appeal, Division One, also held the trial court erred in only striking the invalid prison
prior enhancement and failing to conduct a full resentencing pursuant to section 1172.75,
though the defendant was originally sentenced pursuant to a plea agreement that included
a stipulated sentence of 12 years. (Carter, at pp. 964, 972.) However, disagreeing with
Coddington and distinguishing Stamps, Carter further held the People were “not entitled
to withdraw their assent to the plea bargain if the trial court further reduced [the
defendant’s] sentence on resentencing.” (Carter, at p. 964; see id. at pp. 973–976.)
The Carter court concluded, like in Harris, the statement of intent in the
uncodified portion of Senate Bill 483 “expressly mentions plea agreements and prohibits
both the court and the prosecution from rescinding the plea agreement based on any
change to the sentence resulting from the law.” (People v. Carter, supra, 97 Cal.App.5th
at p. 974.) It held, “[t]he all-inclusive phrase ‘any changes to a sentence as a result of the
act’ [Stats. 2021, ch. 728, § 1] can only be understood to include changes resulting from
the law’s resentencing provision, which provides for full resentencing and states that it
‘shall result in a lesser sentence’ unless it would endanger public safety and ‘shall not

10.
result in a longer sentence than the one originally imposed.’ (§ 1172.75, subd. (d)(1).)”
(Id. at p. 973.) Carter reasoned, “[t]he statement of legislative intent in Senate Bill 483
does not differentiate between a sentence reduced by removal of the prison-prior
enhancement and a sentence reduced due to other resentencing decisions made by the
trial court. Instead, it broadly refers to ‘any changes’ to the sentence resulting under the
new law and then states that those changes do not give the prosecution a right to
withdraw from a plea agreement. (Stats. 2021, ch. 728, § 1.).” (Ibid.) Accordingly, “the
Legislature’s clear directive is that any reduction of the defendant’s sentence on
resentencing shall not be a basis for the prosecutor or the court to withdraw from a plea
agreement.” (Ibid.)
Carter further concluded the legislative history of Senate Bill 483 was consistent
with its interpretation of the Legislature’s intent. (People v. Carter, supra, 97
Cal.App.5th at p. 974.) It referenced the Assembly Committee on Public Safety’s
analysis of Senate Bill 483 that included a section titled “Effect on Guilty Pleas” in which
it stated the “‘legislative intent [is] that its provision for retroactive application and
resentencing applies to guilty plea cases. This would include those in which there may
have been a negotiated disposition.’” (Carter, at p. 974; see Assem. Com. on Public
Safety, Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended July 7, 2021, at p.
4.) Carter further explained:

“The report went on to quote the Supreme Court’s holding in Doe v.
Harris (2013) 57 Cal.4th 64, 66, 71, 73 that ‘“plea agreements are deemed
to incorporate the reserve power of the state to amend the law”’; the fact
that ‘“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”’; and it therefore follows ‘“that requiring the parties’
compliance with changes in the law made retroactive to them does not
violate the terms of the plea agreement.”’ (Assem. Com. on Public Safety,
Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended July 7, 2021,
p. 4.) The committee’s report also confirmed the ‘Legislative intent that
any changes to a sentence as a result of these provisions is not a basis for a
prosecutor or [a] court to rescind a plea agreement.’ (Id. at p. 2.) Like the

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uncodified statement, this language did not distinguish between the removal
of prison priors and other potential sentence reductions.

“Several other legislative committee reports on Senate Bill 483 also
noted the Legislature’s intent to prohibit recission of a plea agreement
based on any change in sentence resulting from the law. (See Sen. 3d
reading on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended Sept. 1,
2021, p. 2 [the bill ‘[s]tates Legislative intent that any changes to a sentence
as a result of these provisions is not a basis for a prosecutor or [a] court to
rescind a plea agreement.’]; Sen. Rules Com., Off. of Sen. Floor Analyses,
Rep. on Sen. Bill No. 483 (2021-2022 Reg. Sess.) as amended Sept. 1,
2021, p. 4 [same].)” (People v. Carter, supra, 97 Cal.App.5th at pp. 974–
975.)
Carter noted that Coddington did not mention these legislative history reports but
instead cited to the Legislative Counsel’s Digest for Senate Bill 483 as stating “‘that the
legislation would declare prison priors “to be legally invalid” and would state the intent
of the Legislature to prohibit the rescission of a plea agreement based on eliminating
them.’ (People v. Coddington, supra, 96 Cal.App.5th at pp. 571–572, italics added.)”
(People v. Carter, supra, 97 Cal.App.5th at p. 975.) Carter explained, however, “the
actual language of the Legislative Counsel’s Digest is broader.” (Ibid.) It provides,
consistent with the uncodified statement of intent and legislative committee reports,
“‘The bill would state the intent of the Legislature to prohibit a prosecutor or court from
rescinding a plea agreement based on a change in sentence as a result of this measure.’
(Legis. Counsel’s Dig., Sen. Bill 483 (2021–2022 Reg. Sess.); Stats. 2021, ch. 728.)”
(Carter, at p. 975.) Carter also disagreed with Coddington that its holding would
“overrule” Stamps, reasoning the statute at issue, section 1172.75, is distinct from that
which was at issue in Stamps. (Carter, supra, at p. 976.)
Multiple courts addressing the issue have since agreed with Carter that the
Legislature intended to preclude a prosecutor from rescinding a plea agreement due to
any sentence reduction at a section 1172.75 hearing, and the California Supreme Court
recently granted review to address the issue. (See People v. Montgomery (2024) 100
Cal.App.5th 768, 775 [Ct. App., First Dist., Div. Three], review granted May 29, 2024,

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S284662; accord, People v. Hernandez (2024) 103 Cal.App.5th 981, 986 [Ct. App.,
Fourth Dist., Div. Three], petn. for review pending, petn. filed Aug. 22, 2024.)
III, Analysis
Defendant asserts the court erred in refusing to conduct a full resentencing. He
contends there have been changes in the law that could apply and reduce his sentence
further, including the passage of Senate Bill Nos. 81, 567, and 1393. Accordingly, he
contends the matter must be remanded for the court to conduct a full resentencing and,
for the reasons stated in Carter and Montgomery, any additional reduction of the sentence
on resentencing shall not be a basis for the People or the court to withdraw from the plea
agreement. The People agree that “[a] prisoner whose sentence includes a now invalid
section 667.5 prior prison term enhancement is entitled to resentencing relief, whether he
or she was convicted by a jury or plea” and “to a full resentencing, and … ‘not merely
that the trial court strike the newly “invalid” enhancements.’” They contend, “[i]f there
are other ameliorative changes in the law that may further reduce [defendant]’s sentence,
this Court should permit the prosecution to withdraw its assent to the plea agreement.”
Initially, we agree with the parties that remand is required for the court to conduct
a full resentencing. As the parties acknowledge, on its face, section 1172.75 requires a
full resentencing for prisoners whose sentences include a now invalid section 667.5 prior
prison term enhancement, and the statute draws no distinction between individuals
convicted by jury or plea. (See § 1172.75, subd. (d)(2) [requiring trial court to “apply the
sentencing rules of the Judicial Council and apply any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing”]; see also People v. Monroe (2022) 85 Cal.App.5th
393, 402 [“By its plain terms, section 1172.75 requires a full resentencing, not merely
that the trial court strike the newly ‘invalid’ enhancements”].) And, because the trial
court was not aware of the scope of its discretionary powers, and the record does not

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clearly indicate the court would have reached the same conclusion had it been aware of
its discretion, a remand for resentencing is appropriate. (See People v. Gutierrez (2014)
58 Cal.4th 1354, 1391 [“‘Defendants are entitled to sentencing decisions made in the
exercise of the “informed discretion” of the sentencing court. [Citations.] A court which
is unaware of the scope of its discretionary powers can no more exercise that “informed
discretion” than one whose sentence is or may have been based on misinformation
regarding a material aspect of a defendant’s record.’ [Citation.] In such circumstances,
… the appropriate remedy is to remand for resentencing unless the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion’”].)
With regard to the parties contentions regarding whether the People should be able
to withdraw from the plea agreement if defendant’s sentence is further reduced on
remand, we note, “[a]s a general rule, we do not issue advisory opinions indicating
‘“what the law would be upon a hypothetical state of facts.”’” (People v. Slayton (2001)
26 Cal.4th 1076, 1084.) And any opinion as to whether the People may withdraw from
the plea agreement at this juncture would be purely advisory as it is conditioned upon
whether the trial court hypothetically further reduces defendant’s sentence on remand.
(See People v. Chadd (1981) 28 Cal.3d 739, 746 [“We will not … adjudicate
hypothetical claims or render purely advisory opinions”].) Accordingly, we decline to
address the parties’ contentions on this issue. We further note, as discussed, the high
court is poised to resolve this issue in People v. Montgomery, supra, 100 Cal.App.5th
768, review granted.
DISPOSITION
The court’s May 24, 2023, order is vacated and the matter is remanded for a new
resentencing hearing that complies with section 1172.75.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10586373. Public record. Not legal advice.