APPEAL
from a judgment of the Superior Court of Kern County No.
BF166031A. Michael G. Bush, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez, Lewis A. Martinez and Amanda D.
Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Effective
January 1, 2019, Senate Bill No. 1393 amended Penal Code
sections 667, former subdivision (a)(1), and 1385, former
subdivision (b), and granted trial courts the discretion to
strike or dismiss the previously mandatory five-year prior
serious felony conviction enhancement under section 667,
subdivision (a)(1).[1] (Stats. 2018, ch. 1013, §§
1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393).) This
criminal appeal requires us to determine whether defendant
Charles Patrick Ellis, who was convicted by plea and
sentenced to a stipulated term that included the
then-mandatory five-year enhancement under section 667,
former subdivision (a)(1), may proceed with this appeal
seeking relief under Senate Bill No. 1393 given his failure
to obtain a certificate of probable cause. (§ 1237.5;
Cal. Rules of Court, rule 8.304(b)(4)(B).)[2]
As
discussed herein, we conclude that because defendant entered
his plea, was sentenced and filed a notice of appeal
approximately one year before Senate Bill No. 1393 was
enacted, his failure to obtain a certificate of probable
cause at the time of appeal does not bar his claim on appeal
requesting relief under the change in the law. (People v.
Baldivia (2018) 28 Cal.App.5th 1071, 1074
(Baldivia); People v. Hurlic (2018) 25
Cal.App.5th 50, 53 (Hurlic).) We also reject the
People's alternative contention that remand under Senate
Bill No. 1393 would be an exercise in futility, and we remand
this matter to allow defendant to seek relief under Senate
Bill No. 1393. (People v. Garcia (2018) 28
Cal.App.5th 961, 973, fn. 3 (Garcia).) The judgment
is otherwise affirmed.
PROCEDURAL
HISTORY
Defendant
was charged with evading a peace officer (Veh. Code, §
2800.2, subd. (a)) (count 1), two counts of resisting a peace
officer by means of threat or violence (§ 69) (counts 2
& 3), possession of methamphetamine for sale (Health
& Saf. Code, § 11378 (count 4), false personation
(§ 529, subd. (a)(3)) (count 5), misdemeanor hit and run
with property damage (Veh. Code, § 20002, subd. (a))
(count 6), and misdemeanor resisting arrest (§ 148,
subd. (a)(1)) (count 7).[3] In addition, the information
alleged that defendant suffered a prior serious felony
conviction within the meaning of the “Three
Strikes” law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and alleged a gang enhancement
(§ 186.22, subd. (b)(1)), a prior serious felony
conviction enhancement (§ 667, subd. (a)(1)) and six
prior prison term enhancements (§ 667.5, subd.
(b)).[4], [5]
Pursuant
to a negotiated plea bargain, defendant, who represented
himself after executing a waiver under Faretta v.
California (1975) 422 U.S. 806, 834-836, pled no contest
to evading a peace officer (count 1) and possession of
methamphetamine for sale (count 4), and he admitted the prior
strike conviction, the prior serious felony conviction
enhancement and the gang enhancement. The remaining counts
and the prior prison term enhancements were dismissed; and
the trial court struck the prior strike conviction pursuant
to People v. Superior Court (Romero) (1996) 13
Cal.4th 497, 529-530 (Romero) and sentenced
defendant on count 1 to the lower term of 16 months, plus two
years for the gang enhancement and five years for the prior
serious felony conviction enhancement, for a total
determinate term of eight years four months. On count 4, the
court sentenced defendant to a concurrent lower term of 16
months.
DISCUSSION
I.
Appellate Jurisdiction in Absence of Certificate of Probable
Cause
A.
Background
1. Plea
Agreements in General
With
respect to plea bargains, “the process of plea
negotiation ‘contemplates an agreement negotiated by
the People and the defendant and approved by the court.
[Citations.] Pursuant to this procedure the defendant agrees
to plead guilty [or no contest] in order to obtain a
reciprocal benefit, generally consisting of a less severe
punishment than that which could result if he were convicted
of all offenses charged. [Citation.] This more lenient
disposition of the charges is secured in part by
prosecutorial consent to the imposition of such clement
punishment (§ 1192.5), by the People's acceptance of
a plea to a lesser offense than that charged, either in
degree (§§ 1192.1, 1192.2) or kind [citation], or
by the prosecutor's dismissal of one or more counts of a
multi-count indictment or information. Judicial approval is
an essential condition precedent to the effectiveness of the
“bargain” worked out by the defense and
prosecution. [Citations.] But implicit in all of this is a
process of “bargaining” between the adverse
parties to the case-the People represented by the prosecutor
on one side, the defendant represented by his counsel on the
other-which bargaining results in an agreement between
them.'” (People v. Segura (2008) 44
Cal.4th 921, 929-930 (Segura); accord, People v.
Clancey (2013) 56 Cal.4h 562, 569-570; People v.
Martin (2010) 51 Cal.4th 75, 79 (Martin).)
“Because
a ‘negotiated plea agreement is a form of
contract,' it is interpreted according to general
contract principles. [Citations.] Acceptance of the agreement
binds the court and the parties to the agreement.
[Citations.] ‘“When a guilty [or nolo contendere]
plea is entered in exchange for specified benefits such as
the dismissal of other counts or an agreed maximum
punishment, both parties, including the state, must abide by
the terms of the agreement.”'”
(Segura, supra, 44 Cal.4th at pp. 930-931;
accord, Martin, supra, 51 Cal.4th at p.
79.) However, “the trial court may decide not to
approve the terms of a plea agreement negotiated by the
parties. [Citation.] If the court does not believe the
agreed-upon disposition is fair, the court ‘need not
approve a bargain reached between the prosecution and the
defendant, [but] it cannot change that bargain or agreement
without the consent of both parties.' [Citations.]
[¶] Although a plea agreement does not divest the court
of its inherent sentencing discretion, ‘a judge who has
accepted a plea bargain is bound to impose a sentence within
the limits of that bargain. [Citation.] “A plea
agreement is, in essence, a contract between the defendant
and the prosecutor to which the court consents to be
bound.” [Citation.] Should the court consider the plea
bargain to be unacceptable, its remedy is to reject it, not
to violate it, directly or indirectly. [Citation.] Once the
court has accepted the terms of the negotiated plea,
“[it] lacks jurisdiction to alter the terms of a plea
bargain so that it becomes more favorable to a defendant
unless, of course, the parties agree.”
[Citation.]'” (Segura, supra, at
p. 931; accord, Martin, supra, at p. 79.)
However,
“the general rule in California is that a plea
agreement is ‘“deemed to incorporate and
contemplate not only the existing law but the reserve
power of the state to amend the law or enact additional laws
for the public good and in pursuance of public
policy.…”' [Citation.] It follows, also as a
general rule, that requiring the parties' compliance with
changes in the law made retroactive to them does not violate
the terms of the plea agreement, nor does the failure of a
plea agreement to reference the possibility the law might
change translate into an implied promise the defendant will
be unaffected by a change in the statutory consequences
attending his or her conviction. To that extent, then, the
terms of the plea agreement can be affected by changes in the
law.” (Doe v. Harris (2013) 57 Cal.4th 64,
73-74 (Doe), italics added; accord, Harris v.
Superior Court (2016) 1 Cal.5th 984, 990-991
(Harris).)
Although
this case does not involve a claim that defendant waived his
right to appeal, the Legislature recently expressly relied,
in part, on the rule in Doe when it added section
1016.8 to the Penal Code effective January 1, 2020. (Assem.
Bill No. 1618 (2019-2020 Reg. Sess.) ch. 586, § 1.)
Subdivision (b) of section 1016.8 provides: “A
provision of a plea bargain that requires a defendant to
generally waive future benefits of legislative enactments,
initiatives, appellate decisions, or other changes in the law
that may retroactively apply after the date of the plea is
void as against public policy.”
2.
Certificate of Probable Cause
“The
right to appeal is statutory only, and a party may not appeal
a trial court's judgment, order or ruling unless such is
expressly made appealable by statute.” (People v.
Loper (2015) 60 Cal.4th 1155, 1159; accord, People
v. Arriaga (2014) 58 Cal.4th 950, 958; People v.
Totari (2002) 28 Cal.4th 876, 881.) “In general,
[however, ] a defendant may appeal from a final judgment of
conviction, unless otherwise limited by sections 1237.1 and
1237.5. (§ 1237; see Cal. Rules of Court, rule
8.304(b).…) Section 1237.5, which is at issue here,
provides in full: ‘No appeal shall be taken by the
defendant from a judgment of conviction upon a plea of
guilty or nolo contendere, or a revocation of probation
following an admission of violation, except where both of the
following are met: [¶] (a) The defendant has filed with
the trial court a written statement, executed under oath or
penalty of perjury showing reasonable constitutional,
jurisdictional, or other grounds going to the legality of the
proceedings. [¶] (b) The trial court has executed and
filed a certificate of probable cause for such appeal with
the clerk of the court.' (Italics added.) The purpose of
section 1237.5 is ‘to weed out frivolous and vexatious
appeals from pleas of guilty or no contest, before clerical
and judicial resources are wasted.'” (People v.
Maultsby (2012) 53 Cal.4th 296, 298-299, quoting
People v. Buttram (2003) 30 Cal.4th 773, 790, fn.
omitted; accord, People v. Panizzon (1996) 13
Cal.4th 68, 75-76 (Panizzon).) Thus, when a
defendant pleads guilty or no contest, as here, absent a
certificate of probable cause, “appellate review is
[generally] limited to issues that concern the
‘jurisdiction of the court or the legality of the
proceedings, including the constitutional validity of the
plea.'” (In re Chavez (2003) 30 Cal.4th
643, 649; accord, People v. Maultsby,
supra, at pp. 302-303; see People v.
Shelton (2006) 37 Cal.4th 759, 766.)
B.
Summary of Parties' Positions on Appeal
Pursuant
to the parties' negotiated plea bargain, which did not
include a waiver of the right to appeal, defendant pled no
contest to count 1 and count 4 and admitted the enhancements
on August 29, 2017, and, on September 26, 2017, the trial
court imposed a stipulated sentence of eight years four
months. At that time, trial courts lacked discretion under
section 667, former subdivision (a)(1), and section 1385,
former subdivision (b), to strike or dismiss the five-year
prior serious felony conviction enhancement. After
sentencing, defendant filed a timely notice of appeal,
stating he was appealing the sentence or other matters after
the plea not affecting the validity of the plea. (§
1237.5; Cal. Rules of Court, rules 8.304(b)(4)(B), 8.308(a).)
Approximately
one year later and while this appeal was pending, Senate Bill
No. 1393 was enacted. As previously stated, effective January
1, 2019, Senate Bill No. 1393 amended section 667,
subdivision (a)(1), and section 1385, subdivision (b), to
permit trial courts to strike the prior serious felony
conviction enhancement in furtherance of justice. Defendant
subsequently filed an opening brief arguing that Senate Bill
No. 1393 applies retroactively to cases not yet final on
appeal and that he is entitled to remand to afford the trial
court the opportunity to exercise its discretion to strike
the five-year serious felony conviction
enhancement.[6]
The
People concede that Senate Bill No. 1393 applies
retroactively to cases not yet final on appeal, but they
contend that defendant's appeal must be dismissed because
he failed to obtain a certificate of probable cause (§
1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B)), and that
Hurlic, which held to the contrary, was wrongly
decided (Hurlic, supra, 25 Cal.App.5th at
p. 53). Alternatively, they contend that even if we agree
with Hurlic and conclude that defendant did not need
to obtain a certificate of probable cause, remand would be
futile.
Defendant
did not file a reply brief.
C.
Summary of Split of Authority Concerning Certificate of
...