[REVIEW GRANTED BY CAL. SUPREME COURT]
[257
Cal.Rptr.3d 82] APPEAL from a judgment of the Superior Court
of Kern County. Michael G. Bush, Judge. (Super. Ct. No.
BF166031A)
Page 926
[Copyrighted Material Omitted]
Page 927
COUNSEL
Gregory
L. Cannon, San Diego, 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.
Page 928
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
Page 929
probable cause at the time of appeal does not bar his claim
on appeal requesting relief under the change in the [257
Cal.Rptr.3d 83] law. (People v. Baldivia (2018) 28
Cal.App.5th 1071, 1074, 239 Cal.Rptr.3d 704
(Baldivia ); People v. Hurlic (2018) 25
Cal.App.5th 50, 53, 235 Cal.Rptr.3d 255 (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, 239
Cal.Rptr.3d 558 (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]
Page 930
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,
95 S.Ct. 2525, 45 L.Ed.2d 562, 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, 53 Cal.Rptr.2d 789,
917 P.2d 628');">917 P.2d 628 [257 Cal.Rptr.3d 84] (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, 80 Cal.Rptr.3d 715');">80 Cal.Rptr.3d 715, 188 P.3d 649
(Segura ); accord,
Page 931
People v. Clancey (2013) 56 Cal.4h 562, 569-570, 155
Cal.Rptr.3d 485, 299 P.3d 131; People v. Martin
(2010) 51 Cal.4th 75, 79, 119 Cal.Rptr.3d 99, 244 P.3d 496
(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, 80 Cal.Rptr.3d 715');">80 Cal.Rptr.3d 715, 188 P.3d 649; accord,
Martin, supra, 51 Cal.4th at p. 79, 119 Cal.Rptr.3d
99, 244 P.3d 496.) 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 [257 Cal.Rptr.3d 85] to a defendant
unless, of course, the parties agree." [Citation.]’
" (Segura, supra, at p. 931, 80 Cal.Rptr.3d
715, 188 P.3d 649; accord, Martin, supra, at p. 79,
119 Cal.Rptr.3d 99, 244 P.3d 496.)
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, 158 Cal.Rptr.3d 290, 302 P.3d 598');">302 P.3d 598 (Doe ),
italics added; accord, Harris v. Superior Court
(2016) 1 Cal.5th 984, 990-991, 209 Cal.Rptr.3d 584, 383 P.3d
648 (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
Page 932
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, 184
Cal.Rptr.3d 715, 343 P.3d 895; accord, People v.
Arriaga (2014) 58 Cal.4th 950, 958, 169 Cal.Rptr.3d 678,
320 P.3d 1141; People v. Totari (2002) 28 Cal.4th
876, 881, 123 Cal.Rptr.2d 76, 50 P.3d 781.) "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, 134 Cal.Rptr.3d 542, 265 P.3d 1038, quoting
People v. Buttram (2003) 30 Cal.4th 773, 790, 134
Cal.Rptr.2d 571, 69 P.3d 420, fn. omitted; accord, People
v. Panizzon (1996) 13 Cal.4th 68, 75-76, 51 Cal.Rptr.2d
851, 913 P.2d 1061 (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 [257 Cal.Rptr.3d 86]
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, 134
Cal.Rptr.2d 54, 68 P.3d 347; accord, People v. Maultsby,
supra, at pp. 302-303, 134 Cal.Rptr.3d 542, 265 P.3d
1038; see People v. Shelton (2006) 37 Cal.4th 759,
766, 37 Cal.Rptr.3d 354');">37 Cal.Rptr.3d 354, 125 P.3d 290.)
B. Summary of Parties’ ...