Where defendant was placed on probation and execution of the imposed state prison sentence was suspended, defendant was entitled to retroactive application of the ameliorative provisions of Senate Bill No. 136, but remand for reconsideration of the plea agreement was also required. Defendant was placed on probation in 2017, with a sentence of five years in state prison imposed but execution suspended, in keeping with the plea agreement fixing that sentence. In 2020, the defendant violated probation. The court revoked probation and ordered execution of the five-year sentence. Defendant moved to strike the one-year enhancement for a prior prison term (Pen. Code, § 667.5, subd. (b)) in light of SB 136, which effective January 1, 2020 limits the applicability of prior prison term sentence enhancements to terms served for sexually violent offenses. The trial court denied the motion, finding defendant’s sentence was already final when SB 136 took effect. Defendant appealed. Held: Vacated and remanded. For purposes of retroactivity of ameliorative legislation, a sentence is not final where, as here, the defendant “may still timely obtain direct review of [the] order revoking probation and causing the state prison sentence to take effect.” (People v. Esquivel (2021) 11 Cal.5th 671, 673.) Thus, defendant is entitled to the benefit of SB 136. However, the proper remedy is not to order the trial court to strike the prison prior and let defendant serve the remaining four years of his sentence, as this would constitute a unilateral change to the plea. Instead, on remand, the court must dismiss the one-year sentence for the prison prior. It may then wish to withdraw its approval of the plea agreement. The prosecution may also wish to withdraw from, or modify, the plea agreement. However the new plea is reached (if at all), it may not include a sentence longer than the five-year term in defendant’s original plea. [Editor’s Notes: (1) In a footnote, the court noted that, with respect to whether the trial court could sentence defendant to a term in excess of the originally agreed upon sentence, nothing in the opinion should be read as considering a situation where the parties fail to enter into a new agreement and defendant is convicted at trial. (2) ]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B305655.PDF