People v. Galindo

Recently, a split of authority has emerged among our Courts of Appeal as to whether a defendant sentenced pursuant to a stipulated sentence prior to the passage of Senate Bill 1393 must obtain a certificate of probable cause before seeking a remand for resentencing under the new law. (See People v. Kelly (2019) 32 Cal.App.5th 1013 , 244 Cal.Rptr.3d 394 ( Kelly ) [dismissing appeal due to lack of certificate of probable cause]; People v. Stamps (2019) 34 Cal.App.5th 117 , 245 Cal.Rptr.3d 821 ( Stamps ) [remanding for resentencing under Sen. Bill No. 1393 ].) A similar split has arisen with respect to Senate Bill No. 620 (2017-2018 Reg. Sess.) concerning firearm enhancements, which like Senate Bill 1393, grants trial courts discretion they previously

Where the parties have agreed upon a stipulated sentence in the plea agreement, as here, courts have enforced the certificate requirement on appeal. ( People v. Panizzon (1996) 13 Cal.4th 68 , 73, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ( Panizzon ); Fox , supra , 34 Cal.App.5th at p. 883-884, 246 Cal.Rptr.3d 873 [2019 Cal.App. Lexis 409 at p. *1].) "Even when a defendant purports to challenge only the sentence imposed, 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 a plea agreement. [Citations.] ... [I]n such cases ..., as a consequence of the plea agreement, the validity of an agreed-upon aspect of the sentence is not in contention at the sentencing hearing. Such an agreed-upon aspect of the sentence cannot be challenged without undermining the plea agreement itself. Consequently, an attack upon an integral part of the plea agreement 'is, in substance, a challenge to the validity of the plea ....' " ( Johnson, supra , 47 Cal.4th at pp. 678-679, 101 Cal.Rptr.3d 332 , 218 P.3d 972 , quoting Panizzon , at p. 73, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 .)

By contrast, a plea in which the parties agree to a maximum sentence does not require a certificate of probable cause unless the defendant challenges the legal validity of the maximum sentence itself. ( People v. Buttram, supra , 30 Cal.4th at pp. 790-791, 134 Cal.Rptr.2d 571 , 69 P.3d 420 ; Hurlic, supra , 25 Cal.App.5th at pp. 55-56, 235 Cal.Rptr.3d 255 .) This is because a plea bargain where the parties agree to any sentence at or below a maximum necessarily contemplates that the trial court will choose from among a range of possible punishments. ( Buttram , at pp. 790-791, 134 Cal.Rptr.2d 571 , 69 P.3d 420 .) A challenge to such a sentence attacks the discretionary choices of the trial court in sentencing after the plea, and not (as here) the specific sentence agreed to by defendant and the prosecution as an integral part of the plea agreement. (See id. at p. 777, 134 Cal.Rptr.2d 571 , 69 P.3d 420 ["Unless it specifies otherwise, a plea agreement providing for a maximum sentence inherently reserves the parties' right to a sentencing proceeding in which (1) ... they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the court's lawful discretion, and (2) appellate challenges otherwise available against the court's exercise of that discretion are retained."].) As such, it does not require a certificate of probable cause. ( Ibid. )

Having considered the parties' arguments and these recent authorities, we decline defendant's invitation to follow Hurlic and Baldivia (and presumably Stamps ) because we disagree with the fundamental premise of those cases that the certificate of probable cause requirement conflicts with retroactive application of the new criminal sentencing laws. (See Fox , supra , 34 Cal.App.5th at p. 880, 246 Cal.Rptr.3d 873 [2019 Cal.App. Lexis 409 at p. *16] [disagreeing with Hurlic court that conflict exists requiring determination of which authority " 'prevails' "].) For reasons we will explain, we find more persuasive the analysis in Fox , a case from a different panel of this Division, also concerning the application of Senate Bill 620 to a plea bargain incorporating a stipulated sentence.

In Hurlic , the defendant pled no contest and accepted an offer from the prosecution for a 25-year prison sentence that included a 20-year firearm enhancement. ( Hurlic, supra , 25 Cal.App.5th at pp. 53-54, 235 Cal.Rptr.3d 255 .) A few weeks after he was sentenced to the 25-year term, the Governor signed Senate Bill 620, granting trial courts discretion to strike firearm enhancements. ( Hurlic , at p. 54, 235 Cal.Rptr.3d 255 .) On his notice of appeal, Hurlic did not check the box indicating his appeal challenged the validity of his plea, but he wrote on his notice of

The court concluded the line of authority regarding retroactivity "trumps" the line of authority regarding the application of the probable cause certificate requirement for three reasons. ( Hurlic, supra , 25 Cal.App.5th at p. 57, 235 Cal.Rptr.3d 255 .) First, " '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.' " ' " ( Ibid. ) Because Hurlic's plea agreement did not contain a term incorporating only the law in existence at the time of its execution, it necessarily incorporated the subsequent enactment of Senate Bill 620. ( Hurlic , at p. 57, 235 Cal.Rptr.3d 255 .) Second, the Hurlic court concluded that elimination of the certificate of probable cause requirement in these circumstances better implements the intent of the certificate requirement by incentivizing plea agreements and allowing appeals of nonfrivolous issues. ( Id. at pp. 57-58, 235 Cal.Rptr.3d 255 .) Third, the court relied on the rule of statutory construction favoring the precedence of newly enacted and more specific laws when two

The Fox court's analysis began by disagreeing with " Hurlic 's initial premise that a conflict exists between the line of authority involving certificates of probable cause and the line of authority recognizing Senate Bill No. 620's retroactive effect, requiring a determination of which authority 'prevails.' [Citation.] Just because Senate Bill No. 620 applies to Fox 's nonfinal judgment after a plea does not mean that Fox 'is entitled to have the trial court exercise its discretion' under the new law without regard to other legal requirements." ( Fox , supra , 34 Cal.App.5th at p. 880, 246 Cal.Rptr.3d 873 [2019 Cal.App. Lexis 409 at p. *16].) "[T]he real

In sum, we agree with the reasoning in Fox and disagree with Hurlic and Baldivia. We hold that where, as here, the parties have agreed to a specific sentence as part of a negotiated plea, a defendant must obtain a certificate of probable cause to pursue an appeal challenging his or her sentence under Senate Bill 1393 because the appeal is, in substance, an attack on the validity of the plea.

III. DISPOSITION

The appeal is dismissed.

We concur:

Humes, P. J.

Banke, J.

The Attorney General appropriately concedes that Senate Bill 1393 applies retroactively to defendant's case. Absent evidence to the contrary, when the Legislature amends a statute to either reduce the punishment for a crime or allow the trial court to exercise its " 'discretion to impose either the same penalty as under the former law or a lesser penalty,' " we assume the Legislature intends the amendment to apply to all judgments not final as of the statute's effective date. ( People v. Superior Court (Lara) (2018) 4 Cal.5th 299 , 307-308 & fn. 5, 228 Cal.Rptr.3d 394 , 410 P.3d 22 .) Because the judgment is not yet final, Senate Bill 1393 applies retroactively in this case. ( People v. Garcia (2018) 28 Cal.App.5th 961 , 973, 239 Cal.Rptr.3d 558 ; Kelly , supra , 32 Cal.App.5th at pp. 1015-1016, 244 Cal.Rptr.3d 394 .)

B. Certificate of Probable Cause

Though we recognize Senate Bill 1393 is retroactive in effect, we must separately consider whether it mandates a remand for resentencing here as defendant argues, or whether, as the Attorney General asserts, his appeal must be dismissed because he failed to obtain a certificate of probable cause from the trial court.

Generally, a defendant may not appeal following a plea of guilty or no contest unless he or she first obtains a certificate of probable cause from the trial court. (§ 1237.5, subd. (b); People v. Cuevas (2008) 44 Cal.4th 374 , 379, 79 Cal.Rptr.3d 303 , 187 P.3d 30 ; People v. Espinoza (2018) 22 Cal.App.5th 794 , 798-799, 231 Cal.Rptr.3d 827 .) " 'The purpose and effect of section 1237.5 ... are ... to create a mechanism for trial court determination of whether an appeal raises ... any nonfrivolous issue going to the legality of the proceedings.... Section 1237.5 was intended to remedy the unnecessary expenditure of judicial resources by preventing the prosecution of frivolous appeals challenging convictions on a plea of guilty.' " ( People v. Johnson (2009) 47 Cal.4th 668 , 676, 101 Cal.Rptr.3d 332 , 218 P.3d 972 ( Johnson ) .)

Despite the breadth of section 1237.5 and the Supreme Court's directive that it "should be applied in a strict manner" ( People v. Mendez (1999) 19 Cal.4th 1084 , 1098, 81 Cal.Rptr.2d 301 , 969 P.2d 146 ( Mendez )), our courts have long recognized that a certificate of probable cause is not necessary to appeal rulings involving search and seizure issues or where a defendant is challenging not the validity of his or her plea, but errors at

In addition, after this case was fully briefed, two new cases addressed the certificate of probable cause requirement as it pertains to appeals based on Senate Bill

In Baldivia , supra , 28 Cal.App.5th 1071 , 239 Cal.Rptr.3d 704 , the defendant entered a plea of no contest to four criminal counts and admitted firearm and gang enhancement allegations. The appellate court concluded Baldivia was not required to obtain a certificate of probable cause and was entitled to a remand and possible resentencing hearing at which the court could exercise its discretion whether to strike the firearm enchantments. ( Id. at pp. 1075, 1079, 239 Cal.Rptr.3d 704 .) Baldivia found dispositive Hurlic 's first rationale for favoring the retroactivity rule over the certificate of probable cause requirement. ( Baldivia , at p. 1077, 239 Cal.Rptr.3d 704 .) Applying the general rule that plea agreements incorporate the reserve power of the state to amend and enact new laws, the court concluded that Senate Bill 620 applied retroactively to the defendant's judgment. The court reasoned: "If the electorate or the Legislature expressly or implicitly contemplated that a change in the law related to the consequences of criminal offenses would apply retroactively to all nonfinal cases, those changes logically must apply to preexisting plea agreements, since most criminal cases are resolved by plea agreements. It follows that defendant's appellate contentions were not an attack on the validity of his plea and did not require a certificate of probable cause." ( Baldivia , at p. 1079, 239 Cal.Rptr.3d 704 .)

Fox disagreed with both Hurlic and Baldivia , holding a defendant's challenge to his conviction based on a guilty plea that included a stipulated sentence was barred because he failed to obtain a certificate of probable cause from the trial court. Acknowledging that Senate Bill 620 applies retroactively to all judgments not final when the law went into effect, the Fox court determined the new law would allow defendants that did not agree to serve a

We agree with this court's analysis in Fox . When the parties agree to a specific sentence, a defendant seeking to reduce that sentence is necessarily challenging the validity of the plea itself. ( Panizzon, supra , 13 Cal.4th at pp. 73, 79, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ; Johnson, supra , 47 Cal.4th at pp. 678-679, 101 Cal.Rptr.3d 332 , 218 P.3d 972 .) Thus, consistent with our obligation to strictly apply the certificate of probable cause requirement as mandated by our Supreme Court ( Mendez, supra , 19 Cal.4th at p. 1098, 81 Cal.Rptr.2d 301 , 969 P.2d 146 ), we conclude that where the prosecution and defendant have negotiated a specific sentence, a certificate of probable cause is a necessary predicate to an appeal seeking a remand for resentencing under Senate Bill 1393. ( Fox , supra , 34 Cal.App.5th at p. 875-879, 246 Cal.Rptr.3d 873 [2019 Cal.App. Lexis 409 at p. *2]; Kelly, supra , 32 Cal.App.5th at pp. 1017-1018.)

Further, the general legal principle that changes in the law are deemed incorporated into a plea bargain does not apply here , because the change in the law created by Senate Bill 1393 (allowing the court to exercise its sentencing discretion) does not affect defendant's plea, which stated a specific, agreed-upon sentence that had already been accepted and imposed by the trial court, not a sentence which granted the trial court discretion to select the sentence. Had the parties agreed to a maximum sentence instead, the certificate of probable cause requirement would not apply, and defendant would be free to argue on appeal the case should be remanded for the court to exercise its discretion as agreed by the parties at the time they entered the plea deal. (See, e.g., Buttram, supra , 30 Cal.4th at p. 786, 134 Cal.Rptr.2d 571 , 69 P.3d 420 ["when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was 'part of [the] plea bargain.' [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself."].)

Like Fox , we find People v. Cunningham (1996) 49 Cal.App.4th 1044 , 57 Cal.Rptr.2d 179 persuasive and analogous on this point. In Cunningham , the defendant sought remand to allow the trial court to exercise its discretion whether to strike his prior felony convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 , 53 Cal.Rptr.2d 789 , 917 P.2d 628 . Though the Romero court's holding clarifying trial courts have such authority was retroactive, Cunningham denied relief because the defendant had entered a negotiated plea deal with a specified sentence. ( Cunningham , at p. 1047, 57 Cal.Rptr.2d 179 .) As the court explained, " ' "A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." [Citation.] ... Once the court has accepted the terms of the negotiated plea, "[i]t lacks jurisdiction to alter the terms of a plea bargain so that it

In addition, as this court explained in Fox , the requirement that later laws are incorporated into the plea bargain applies only to changes that were intended to apply to defendant. ( Fox , supra , 34 Cal.App.5th at p. 882, 246 Cal.Rptr.3d 873 [2019 Cal.App. Lexis 409 at p. *19].) There is nothing in the language or legislative history of Senate Bill 1393 that suggests the Legislature intended to grant trial courts discretion to reduce stipulated sentences to which the prosecution and defense have already agreed in exchange for other promises. Neither the words of the statute itself nor the legislative history reference plea bargaining, nor do they express an intent to overrule existing law that once the parties agree to a specific sentence, the trial court is without power to change it unilaterally. (See People v. Segura (2008) 44 Cal.4th 921 , 931-932, 80 Cal.Rptr.3d 715 , 188 P.3d 649 ; People v. Giordano (2007) 42 Cal.4th 644 , 659, 68 Cal.Rptr.3d 51 , 170 P.3d 623 ["The Legislature is presumed to be aware of ' "judicial decisions already in existence, and to have enacted or amended a statute in light thereof." ' "].)

Nor are we persuaded by the Hurlic court's reliance on Doe v. Harris (2013) 57 Cal.4th 64 , 158 Cal.Rptr.3d 290 , 302 P.3d 598 ( Doe ) and Harris v. Superior Court (2016) 1 Cal.5th 984 , 209 Cal.Rptr.3d 584 , 383 P.3d 648 ( Harris ), two cases which are distinguishable because they did not discuss or consider the certificate of probable cause requirement. In Harris , our Supreme Court considered whether the passage of Proposition 47 after the defendant entered a plea agreement would allow the prosecution to withdraw from the agreement if the defendant petitioned for a recall and resentencing. The court concluded it would not, because "entering into a plea agreement does not insulate the parties 'from changes in the law that the Legislature has intended to apply to them. ' " ( Harris , at p. 991, 209 Cal.Rptr.3d 584 , 383 P.3d 648 , italics added by Harris. ) Proposition 47 expressly provides that it "governs someone 'serving a sentence for a conviction, whether by trial or plea ,' of one of the felonies that Proposition 47 reduced to a misdemeanor.... By expressly mentioning convictions by plea, Proposition 47 contemplated relief to all eligible defendants." ( Harris , at p. 991, 209 Cal.Rptr.3d 584 , 383 P.3d 648 , italics added by Harris. ) Unlike Proposition 47, the amendment in Senate Bill 1393 does not expressly mention convictions by plea but grants discretion to the trial court to strike or dismiss such enhancements. (Legis. Counsel's Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2 [Sen. Bill 1393 deletes restriction prohibiting judge from striking prior serious felony conviction when imposing a sentence for serious felony].) Nor does it, like Proposition 47, create a procedural mechanism allowing defendants to reduce their sentences. ( Harris , at pp. 991-992, 209 Cal.Rptr.3d 584 , 383 P.3d 648 .) Thus, unlike Proposition 47, Senate Bill 1393 does not reflect legislative intent to alter existing sentences based on a negotiated plea deal involving a stipulated sentence.