California Court of Appeals, Second District, Eighth Division
from a judgment of the Superior Court of Los Angeles County
No. YA095655, Edmund Willcox Clarke, Jr., Judge. Appeal
Christopher Love, under appointment by the Court of Appeal,
for Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Steven D. Matthews, Supervising Deputy Attorney
General, and Ryan M. Smith, Deputy Attorney General, for
Plaintiff and Respondent.
confront a direct and widening court conflict over whether
defendants who made a plea deal must obtain a certificate of
probable cause before asking, on appeal, for a remand for
resentencing under Senate Bill No. 1393 (2017-2018 Reg.
Sess.), which we call SB 1393. The Supreme Court has taken up
but not yet decided this conflict. We join with the courts
ruling a certificate of probable cause is necessary. We
dismiss this appeal because Christopher Williams never tried
to obtain a certificate of probable cause. All statutory
citations are to the Penal Code.
summarize some factual background.
of a plea deal, Williams pleaded no contest to two felony
counts of robbery. Williams admitted a strike offense
conviction. In May 2018, the trial court sentenced Williams
to 30 years and four months in prison. Five of these years
were due to a prior serious felony conviction enhancement
under section 667, subdivision (a)(1). Without requesting or
receiving a certificate of probable cause, Williams filed a
notice of appeal on May 31, 2018.
changed later in 2018. At the time of sentencing, section
1385(b) prohibited the court from striking any prior
conviction of a serious felony for enhancement purposes under
section 667. On September 30, 2018, the Governor signed SB
1393 into law. Effective January 1, 2019, this bill amended
section 1385 to grant courts discretion either to impose or
to strike section 667, subdivision (a)(1) enhancements.
parties correctly agree the changes enacted by SB 1393 apply
retroactively to Williams. (See In re Estrada (1965)
63 Cal.2d 740, 744-745 (Estrada).)
of Appeal have divided over whether a defendant sentenced
before SB 1393 must obtain a certificate of probable cause
before seeking a remand for resentencing under the new law.
(Compare People v. Galindo (2019) 35 Cal.App.5th
658, petn. for review pending, petn. filed June 26, 2019
(Galindo) [dismissing appeal for defendant's
failure to obtain certificate of probable cause] and
People v. Kelly (2019) 32 Cal.App.5th 1013, review
granted June 12, 2019, S255145 (Kelly) [dismissing
appeal for defendant's failure to obtain certificate of
probable cause] with People v. Stamps (2019) 34
Cal.App.5th 117, review granted June 12, 2019, S255843
[remanding for resentencing given SB 1393] and People v.
Alexander (June 25, 2019, A151809 & A152247) ___
Cal.App.5th ___ [2019 WL 2590700] [remanding for resentencing
given SB 1393].) A similar split concerns Senate Bill No. 620
(2017-2018 Reg. Sess.) (SB 620), which granted trial courts
new discretion to strike or dismiss firearm sentencing
enhancements. (Compare People v. Fox (2019) 34
Cal.App.5th 1124 (Fox) [dismissing appeal for
defendant's failure to obtain certificate of probable
cause] with People v. Hurlic (2018) 25 Cal.App.5th
50 [remanding for resentencing given SB 620] and People
v. Baldivia (2018) 28 Cal.App.5th 1071');">28 Cal.App.5th 1071 [remanding for
resentencing given SB 620].)
agree with the courts in Galindo, Kelly,
and similar cases and therefore dismiss the present appeal
for Williams's failure to obtain a certificate of
is no sign the Legislature meant SB 1393 to apply to cases