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People v. Ellis

California Court of Appeals, Fifth District

December 24, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
CHARLES PATRICK ELLIS, Defendant and Appellant.

          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 ...


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