People v. Hurlic

obtain from the trial court a certificate of probable cause attesting that at least one of the defendant's stated grounds "is not clearly frivolous and vexatious." ( § 1237.5 ; Cal. Rules of Court, rule 8.304(b) ; People v. Holland (1978) 23 Cal.3d 77 , 84, 151 Cal.Rptr. 625 , 588 P.2d 765 , original italics; cf.

itself) ( People v. French (2008) 43 Cal.4th 36 , 45-46, 73 Cal.Rptr.3d 605 , 178 P.3d 1100 ; People v. Buttram (2003) 30 Cal.4th 773 , 777, 790-791, 134 Cal.Rptr.2d 571 , 69 P.3d 420 ; cf. People v. Shelton (2006) 37 Cal.4th 759 , 763, 37 Cal.Rptr.3d 354 , 125 P.3d 290 ( Shelton ) [certificate of probable cause required to challenge validity of agreed-upon maximum sentence under section 654] ). This differential treatment flows directly from the substance of the parties' agreement: Where the parties agree to a specific sentence, the court's "[a]cceptance of the agreement binds the court and the parties to the agreement" ( People v. Segura (2008) 44 Cal.4th 921 , 930, 80 Cal.Rptr.3d 715 , 188 P.3d 649 ( Segura ) ), and a defendant's challenge to the specific sentence is " in substance a challenge to the validity of the plea" ( Panizzon , at p. 76, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 , original italics). But where the parties agree to any sentence at

So which line of authority prevails? We conclude that the authority regarding retroactivity trumps, and we do so for three reasons.

First, plea agreements are, at bottom, "a form of contract," and their terms, like the terms of any contract, are to be enforced. ( Shelton , supra , 37 Cal.4th at p. 767, 37 Cal.Rptr.3d 354 , 125 P.3d 290 ; cf. Segura , supra , 44 Cal.4th at pp. 931-932, 80 Cal.Rptr.3d 715 , 188 P.3d 649 [court must enforce terms of plea and may not modify them just because one party unilaterally so requests].) Unless a plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made, however, "the general rule in California is that the plea agreement will be ' "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." ' " ( Doe v. Harris (2013) 57 Cal.4th 64 , 66, 158 Cal.Rptr.3d 290 , 302 P.3d 598 , quoting People v. Gipson (2004) 117 Cal.App.4th 1065 , 1070, 12 Cal.Rptr.3d 478 .) Put differently, courts will not amend a plea agreement to add " 'an implied promise [that] the defendant will be unaffected by a change in the statutory consequences attending his or her conviction.' " ( Harris v. Superior Court (2016) 1 Cal.5th 984 , 991, 209 Cal.Rptr.3d 584 , 383 P.3d 648 , quoting Doe v. Harris , at pp. 73-74, 158 Cal.Rptr.3d 290 , 302 P.3d 598 .) Because

fair administration of our courts." [Citations.]' " ( Harris v. Superior Court , supra , 1 Cal.5th at p. 992, 209 Cal.Rptr.3d 584 , 383 P.3d 648 ; Segura, supra , 44 Cal.4th at p. 929, 80 Cal.Rptr.3d 715 , 188 P.3d 649 ; Panizzon , supra , 13 Cal.4th at pp. 79-80, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ); and, as noted above, (2) to "weed out frivolous or vexatious appeals" ( Panizzon , at p. 75, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ). If, as the People urge, a defendant who enters a plea of guilty or no contest must go through the additional step of seeking and obtaining a certificate of probable cause to avail himself or herself of the advantage of ameliorative laws like Senate Bill No. 620 that are otherwise indisputably applicable to him or her, the incentive to enter a plea-or, at a minimum, the incentive to do so expeditiously if legislation or voter initiative along these lines is being contemplated-is reduced. And where, as here, the defendant's entitlement to a new law's retroactive application is undisputed, an appeal seeking such application is neither "frivolous" nor "vexatious," thereby obviating any need for section 1237.5 's screening mechanism.

Third, the rules of statutory construction favor application of Senate Bill No. 620 over section 1237.5. Where two statutes conflict, courts give precedence to the later-enacted statute and precedence to the more specific statute. ( State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940 , 960-961, 184 Cal.Rptr.3d 60 , 342 P.3d 1217 .) And if those two rules of precedence conflict, the more specific statute trumps-even if it is earlier enacted. ( Ibid. ) In this case, Senate Bill No. 620 is the later-enacted statute because it was enacted in 2017, while section 1237.5 was enacted in 1988. Senate Bill No. 620 is also more specific because it deals with a particular sentencing enhancement, whereas section 1237.5 deals more generally with appeals from pleas. Under these canons of construction, in the tug-of-war between

premeditated murder (§§ 187, subd. (a) & 664), and further alleged that those crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C), (4) ) and involved a principal's personal and intentional use and discharge of a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d) ).

In March 2017, defendant accepted the People's offer of a 25-year prison sentence. In accepting this offer, defendant (1) entered a no contest plea to a single count of attempted murder after the People struck the premeditation

People v. Arriaga (2014) 58 Cal.4th 950 , 960, 169 Cal.Rptr.3d 678 , 320 P.3d 1141 [certificate of probable cause not required when defendant appeals an " 'order made after judgment' "].)

Consistent with its purpose of "discourag[ing] and weed[ing] out frivolous or vexatious appeals" following a defendant's voluntary entry into a plea " 'in exchange for specified benefits such as the dismissal of other counts or an agreed' "-upon sentence ( Panizzon , supra , 13 Cal.4th at pp. 75, 80, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ; People v. Johnson (2009) 47 Cal.4th 668 , 676, 101 Cal.Rptr.3d 332 , 218 P.3d 972 ( Johnson ) ), the certificate of probable cause requirement is aimed at (and consequently applies to) claims that operate " in substance [as] a challenge to the validity of the plea" ( Panizzon , at p. 76, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 , original italics; People v. McNight (1985) 171 Cal.App.3d 620 , 624, 217 Cal.Rptr. 393 ). "[T]he crucial issue," our Supreme Court has explained, "is what the defendant is challenging, not the time or manner in which the challenge is made." ( People v. Ribero (1971) 4 Cal.3d 55 , 63, 92 Cal.Rptr. 692 , 480 P.2d 308 .) In light of this focus, the certificate of probable cause requirement does not apply to claims "that arose after entry of the plea and do not affect the plea's validity" ( Cal. Rules of Court, rule 8.304(b)(4)(B) ), such as "issues regarding" post-plea "proceedings held ... for the purpose of determining the degree of the crime and the penalty to be imposed." ( Panizzon , at p. 74, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ; Johnson , at pp. 676-677, 101 Cal.Rptr.3d 332 , 218 P.3d 972 ; People v. Ward (1967) 66 Cal.2d 571 , 574, 58 Cal.Rptr. 313 , 426 P.2d 881 .) Our Legislature has also expressly carved out appeals challenging search and seizure rulings. (§ 1538.5, subd. (m); Cal. Rules of Court, rule 8.304(b)(4)(A).)

The question presented in this case regarding the necessity of a certificate of probable cause lies at the intersection of two lines of authority. Reconciling them is a question of law we decide de novo. ( People v. Alvarez (1996) 14 Cal.4th 155 , 182, 58 Cal.Rptr.2d 385 , 926 P.2d 365 .)

The first line of authority involves the law interpreting the certificate of probable cause requirement in section 1237.5. This body of law draws a line between pleas in which the parties agree that the court will impose a specific, agreed-upon sentence, and pleas in which the parties agree that the court may impose any sentence at or below an agreed-upon maximum. A certificate of probable cause is required for the former ( Cuevas , supra , 44 Cal.4th at pp. 381-382, 79 Cal.Rptr.3d 303 , 187 P.3d 30 ; Panizzon , supra , 13 Cal.4th at pp. 78-80, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ; see generally Johnson , supra , 47 Cal.4th at p. 678, 101 Cal.Rptr.3d 332 , 218 P.3d 972 ), but not the latter (except where the defendant challenges the legal validity of the maximum sentence

or beneath an agreed-upon maximum, that "agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority" do not attack the validity of the plea and "will be reviewable on appeal" without a certificate of probable cause. ( Buttram , at pp. 790-791, 134 Cal.Rptr.2d 571 , 69 P.3d 420 .) Because the parties in this case agreed to a specific, 25-year prison sentence, this line of authority suggests that appellate review is permissible only if defendant first obtains a certificate of probable cause.

The second line of authority involves the law governing the retroactivity of new criminal statutes. Although new criminal statutes are presumed to operate prospectively (§ 3), that presumption is rebuttable: Our Legislature or the voters may "expressly ... declare[ ]" an intent to apply the new law retroactively ( ibid. ); and, absent an express indication to the contrary, courts will infer an intent to apply a new law retroactively to all nonfinal convictions where that new law "mitigat[es]" or "lessens" "the punishment for a particular criminal offense" ( People v. Brown (2012) 54 Cal.4th 314 , 324, 142 Cal.Rptr.3d 824 , 278 P.3d 1182 ; In re Estrada (1965) 63 Cal.2d 740 , 744-745, 48 Cal.Rptr. 172 , 408 P.2d 948 ). A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. ( People v. Francis (1969) 71 Cal.2d 66 , 75-78, 75 Cal.Rptr. 199 , 450 P.2d 591 .) Applying this body of law, the courts have unanimously concluded that Senate Bill No. 620's grant of discretion to strike firearm enhancements under section 12022.53 applies retroactively to all nonfinal convictions. ( People v. Billingsley (2018) 22 Cal.App.5th 1076 , 1079-1080, 232 Cal.Rptr.3d 277 ( Billingsley ); People v. Arredondo (2018) 21 Cal.App.5th 493 , 506-507, 230 Cal.Rptr.3d 380 ; People v. Watts (2018) 22 Cal.App.5th 102 , 119-120, 231 Cal.Rptr.3d 248 ; People v. Woods (2018) 19 Cal.App.5th 1080 , 1090-1091, 228 Cal.Rptr.3d 318 ; People v. Robbins (2018) 19 Cal.App.5th 660 , 679, 228 Cal.Rptr.3d 468 .) This line of authority suggests defendant is entitled to have the trial court exercise its discretion under Senate Bill No. 620.

our Legislature's competing intents to have a screening mechanism for appeals following pleas and to give defendants whose convictions are not yet final the benefit of a possible sentencing reduction, the latter intent prevails.

In resisting this conclusion, the People cite Enlow , supra , 64 Cal.App.4th 850 , 75 Cal.Rptr.2d 402 . In Enlow , the defendant entered a plea with an agreed-upon sentence calculated in part under a statute that dictated a temporarily elevated sentence would "sunset" to a lower penalty the next year. ( Id. at pp. 852-853, 75 Cal.Rptr.2d 402 .) Enlow held on the merits that the defendant was not entitled to be resentenced under the post-"sunset" version of the statute ( id. at p. 855, 75 Cal.Rptr.2d 402 ), and also held that his appeal was procedurally improper because he did not obtain a certificate of probable cause ( id. at pp. 853-854, 75 Cal.Rptr.2d 402 ). Enlow is both distinguishable and unpersuasive. It is distinguishable because the statutory change in Enlow was not truly a "new law"; the statute's anticipated sunset was already on the books (and thus part of the legal landscape) at the time the plea agreement was negotiated, such that the parties' agreement to a specific sentence that did not account for the sunset was "part of the deal," and thus his attack on that sentence went to the validity of the plea itself. Senate Bill