People v. Kelly

S.B. 1393

On September 30, 2018, the Governor signed S.B. 1393 which, effective January 1, 2019, amends sections 667 and 1385 to give trial courts the discretion to dismiss five-year sentence enhancements under section 667, subdivision (a). (See Legis. Counsel's Dig. to S.B. 1393 ["This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction

People v. Wright (2019) 31 Cal.App.5th 749 , 242 Cal.Rptr.3d 837 ( Wright ) is distinguishable. There, a drug dealer pled guilty to transporting a controlled substance ( Health & Saf. Code, § 11352, subd. (a) ) and admitted a strike prior and a prior conviction for violation of Health & Safety Code section 11351.5, which triggered the imposition of a mandatory three-year enhancement under former section 11370.2, subdivision (a). Wright stipulated to a 11-year prison term and appealed on the ground that a 2018 amendment to Health and Safety Code section 11370.2 retroactively limited the enhancement to prior convictions for violation of section 11380. The trial court granted Wright's request for a certificate of probable cause and the Court of Appeal granted Wright's unopposed motion to deem the certificate of probable cause operative for purposes of appeal. The Wright court held "['t]his order moots the People's contention that the appeal should be dismissed for lack of a certificate of probable cause ...." ( Wright , supra , at p. 753, 242 Cal.Rptr.3d 837 .)

Unlike Wright , appellant did not request or obtain a certificate of probable cause. Pursuant to principles of stare decisis we are bound to follow the Supreme Court's holding in Panizzon , supra , 13 Cal.4th at pp. 89-90 & fn. 15, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 . ( Auto Equity Sales , Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455, 20 Cal.Rptr. 321 , 369 P.2d 937 .) S.B. 1393 does not overrule Panizzon or the certificate of probable cause statute (§ 1237.5). In Wright , supra , the change in the law mandated that the three-year enhancement be stricken because it was " 'unauthorized.' " ( Id. at p. 752, 242 Cal.Rptr.3d 837 .) Here, the change in the law (S.B. 1393) vests the trial court with the discretion to strike one or both five-year enhancements, but it is not mandatory.

Certificate of Probable Cause

The Attorney General argues that the appeal should be dismissed because appellant did not obtain a certificate of probable cause. (§ 1237.5.) We agree. "[A] certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of the plea agreement." ( People v. Johnson (2009) 47 Cal.4th 668 , 678, 101 Cal.Rptr.3d 332 , 218 P.3d 972 ; Panizzon , supra , 13 Cal.4th at p. 73, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 .) In contrast, a certificate of probable cause is not required to challenge the trial court's exercise of sentencing discretion where the plea agreement does not specify a particular sentence. ( People v. Buttram (2003) 30 Cal.4th 773 , 790-791, 134 Cal.Rptr.2d 571 , 69 P.3d 420 ; People v. Hurlic (2018) 25 Cal.App.5th 50 , 55-56, 235 Cal.Rptr.3d 255 ( Hurlic ).) Here, appellant and the prosecution agreed to an 18-year sentence. There was no exercise of discretion.

Relying on Hurlic, appellant argues that the plea agreement implicitly incorporates future changes in the law and that appellant should get the benefit of S.B. 1393. In Hurlic , supra , 25 Cal.App.5th 50 , 235 Cal.Rptr.3d 255 , defendant was charged with three counts of attempted premeditated murder with gang and firearm enhancements. ( Id . at p. 53, 235 Cal.Rptr.3d 255 .) Defendant agreed to a 25-year state prison sentence in exchange for a plea of no contest to one count of attempted murder and admitted a 20-year firearm enhancement (§ 12022.53, subd. (c) ). ( Id . at pp. 53-54, 235 Cal.Rptr.3d 255 .) A month after the sentence was imposed, the Governor signed Senate Bill No. 620, which amended section 12022.53 to grant trial courts the discretion to strike section 12022.53 firearm enhancements. ( Id . at p. 54, 235 Cal.Rptr.3d 255 .)

The Court of Appeal in Hurlic dispensed with the certificate of probable requirement based on very "narrow circumstances." ( Hurlic , supra , 25 Cal.App.5th at p. 53, 235 Cal.Rptr.3d 255 .) Defendant "did not check the box on the first page indicating that his appeal 'challenge[d] the validity of the plea or admission,' but, in the blank space where defendants are to spell out why they are requesting a certificate of probable cause, defendant wrote that he sought to avail himself of 'the new Senate

Unlike Hurlic , appellant's notice of appeal does not say that appellant seeks to avail herself of a new law. Appellant entered into a negotiated disposition for an 18-year sentence to avoid a maximum sentence of 29 years. The five-year prior enhancements were a bargained-for component of the sentence. (See, e.g., People v. Enlow (1998) 64 Cal.App.4th 850 , 853-854, 75 Cal.Rptr.2d 402 [declining to allow challenge to stipulated sentence without certificate of probable cause; even if certificate was unnecessary, remedy would be withdrawal of plea, not reduction of sentence].)

Stipulated Sentence

A written negotiated disposition, if approved by the trial court, binds the parties and the court. ( People v. Segura (2008) 44 Cal.4th 921 , 930, 80 Cal.Rptr.3d 715 , 188 P.3d 649 .) Once the trial court has accepted the terms of a negotiated plea that provides for a stipulated sentence, it lacks jurisdiction to alter the terms of the plea bargain to make it more favorable to the defendant. ( Id . at p. 931, 80 Cal.Rptr.3d 715 , 188 P.3d 649 .) " ' "A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." [Citation.] ...' " ( Ibid . ) Like any other contract, "[h]e who takes the benefit must bear the burden." ( Civ. Code, § 3521.) Appellant asserts that remand for resentencing is required to give the trial court the opportunity to exercise its newfound discretion under S.B. 1393. (See, e.g., People v. Rodriguez (1998) 17 Cal.4th 253 , 258, 70 Cal.Rptr.2d 334 , 949 P.2d 31 [limited remand to permit trial court to make threshold determination whether to exercise its discretion to strike prior conviction allegation].) If we were to remand for resentencing, the trial court would still be bound by the terms of the plea agreement which provides a floor and ceiling of 18 years state prison. (See People v. Buycks (2018) 5 Cal.5th 857 , 893-894, 236 Cal.Rptr.3d 84 , 422 P.3d 531 [discussing full resentencing rule]; People v. Sellner (2015) 240 Cal.App.4th 699 , 701-702, 192 Cal.Rptr.3d 836 .)

As a term of the negotiated disposition, appellant executed a Harvey waiver ( People v. Harvey (1979) 25 Cal.3d 754 , 159 Cal.Rptr. 696 , 602 P.2d 396 ), permitting the trial court to consider any prior convictions and sentencing enhancements that were dismissed. Appellant is a three strikes offender and has a long criminal history dating back to 1988 for drug and theft-related crimes, two prior strike convictions (a 1989 robbery conviction

Disposition

The appeal is dismissed because appellant failed to obtain a certificate of probable cause.

We concur:

GILBERT, P. J.

PERREN, J.