People v. Baldivia, H043736

• Decision Date: 05 November 2018
• Docket Number: H044842,H043736
• Citation: 239 Cal.Rptr.3d 704,28 Cal.App.5th 1071
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Francisco Javier BALDIVIA, Defendant and Appellant.

28 Cal.App.5th 1071

239 Cal.Rptr.3d 704

The PEOPLE, Plaintiff and Respondent,

v.Francisco Javier BALDIVIA, Defendant and Appellant.

H043736

H044842

Court of Appeal, Sixth District, California.

Filed November 5, 2018

Attorney for Defendant and Appellant: Alexis Ivar Haller, Under Appointment by the Sixth District Appellate Program

Attorneys for Plaintiff and Respondent: Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General

Mihara, J.Defendant Francisco Javier Baldivia committed a series of criminal offenses when he was 17 years old. Before Proposition 57 took effect in November 2016, defendant entered into a plea agreement in a direct-filed adult criminal proceeding that had been initiated without a juvenile court fitness hearing. Under the plea agreement, he pleaded no contest to four counts and admitted various enhancement allegations, including Penal Code section 12022.53¹ firearm enhancement allegations. His pleas and admissions were entered in exchange for an agreed prison sentence of 17 years and 4 months and the dismissal of other counts and enhancement allegations. He filed a timely notice of appeal challenging only post-plea proceedings, and he did not obtain a certificate of probable cause.

Proposition 57, which bars direct-filed adult criminal proceedings for juveniles and requires a juvenile fitness hearing before a juvenile case may be transferred to adult criminal court, took effect during the pendency of defendant’s appeal. The firearm enhancement statutes were also amended to grant trial courts discretion to strike such enhancements. Defendant contends on appeal that he is entitled to a remand for a juvenile fitness hearing and, if he is found unfit for juvenile court and transferred to adult criminal court, a resentencing hearing at which the trial court may exercise its newly granted discretion to strike the firearm enhancement.

We hold that defendant may raise these issues in his appeal from the judgment despite his failure to obtain a certificate of probable cause in support of his appeal from the judgment because these changes in the law were implicitly incorporated into his plea agreement. Consequently, his contentions do not challenge the validity of his plea. The Attorney General concedes as much and also concedes the merit of defendant’s contentions. We agree and reverse the judgment.

I. Background

In March 2015, 17-year-old defendant and a compatriot used a gun to rob a man of his wallet and truck. Less than two hours later, they again used a gun to rob another man of his vehicle. The police were able to track the second vehicle because the victim had left his cell phone in his vehicle. When the police tried to pull over the vehicle, the vehicle increased its speed to over 100 miles per hour and proceeded at high speed through a residential neighborhood without slowing or stopping at stop lights. Defendant and his compatriot eventually abandoned the vehicle and fled on foot. Although defendant initially resisted, he was arrested, and his compatriot was also captured. Defendant was associated with the Sureno gang, and he had "three dots on his forehead, and ‘VST’ on his chest." His juvenile criminal history included adjudications for robbery, eluding, vehicle theft, and resisting arrest, all within the 18 months preceding his March 2015 offenses.

Although defendant was a juvenile, he was charged in adult criminal court by a direct-filed amended complaint with two counts of second degree robbery (§§ 211, 212.5, subd. (c) ), two counts of carjacking (§ 215), active participation in a criminal street gang (§ 186.22, subd. (a) ), reckless eluding an officer ( Veh. Code, § 2800.2, subd. (a) ), and resisting an officer (§ 148, subd. (a)(1) ). It was further alleged that defendant had committed the robberies, the carjackings, and the eluding for the benefit of a gang (§ 186.22, subd. (b)(1)(C), (4) ). In addition, it was alleged that a principal in the robberies and carjackings had personally used a firearm ( § 12022.53, subds. (b), (e)(1) ).

In May 2016, defendant entered into a plea agreement under which he agreed to plead no contest to the two robbery counts, the eluding count, and the resisting count and to admit the firearm and gang enhancement allegations attached to the robbery counts in exchange for an agreed sentence of 17 years and four months in prison and dismissal of the remaining counts and allegations. In June 2016, the court imposed the agreed prison sentence, which included 13 years and four months for the section 12022.53 firearm enhancements. The court dismissed the other counts and allegations, and defendant timely filed a notice of appeal challenging only post-plea proceedings. He did not request a certificate of probable cause.

Proposition 57 took effect on November 9, 2016. ( People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 304, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ).) On November 14, 2016, defendant’s appointed appellate counsel filed a Wende² brief, which stated the case and the facts but raised no issues. In December, defendant’s appellate counsel filed a motion to strike the opening brief and to file a new opening brief. In response, this court issued the following order: "On the court’s own motion, the appeal is stayed. The matter is returned to the trial court to hold any and all proceedings necessary to address the Proposition 57 issues raised by appellant’s case, including, but not limited to a request for certificate of probable cause. Within 15 days of the completion of the proceedings in the trial court, appellant shall file a notice in this court summarizing the outcome of the proceedings below and requesting the reinstatement of the appeal to active status. Appellant’s motion to file an amended opening brief is denied without prejudice to renewal upon return of the matter to active status in this court."

Defendant then filed a motion in the superior court asking the superior court to "remand" the case to the juvenile court for a "juvenile transfer hearing" in light of Proposition 57. The prosecution opposed the request on the ground that Proposition 57 was "not retroactive." In June 2017, the superior court denied defendant’s motion. In July 2017, defendant filed a notice of appeal from the court’s denial of his motion. In his notice of appeal, he claimed that he was challenging the "validity of the plea or admission" and requested a certificate of probable cause. The only grounds identified in his request for a certificate related to the denial of his motion for remand. The court granted the certificate.

In July 2017, defendant’s appellate counsel notified this court of the completion of the proceedings in the trial court. This court lifted the stay and restored the case to active status. Defendant’s appellate counsel did not renew his request to strike the Wende brief and file a new opening brief. This court ordered that defendant’s two appeals be considered together. Defendant’s appellate counsel filed an opening brief in the second appeal in March 2018 in which he contended that Proposition 57 applied to his case and that he was entitled to a remand to the juvenile court for a transfer hearing. The Attorney General filed a concession brief in which he not only conceded that defendant was entitled to a transfer hearing, but also asserted that defendant was entitled to a remand for the sentencing court to exercise its newly granted discretion to strike the firearm enhancement. Defendant’s reply brief adopted the Attorney General’s assertions regarding the firearm enhancement.

We requested supplemental briefing from the parties addressing, among other things, whether the Proposition 57 and firearm enhancement contentions could be raised in defendant’s appeal from the judgment in the absence of a certificate of probable cause in light of defendant’s agreed-term plea agreement. The Attorney General and defendant agreed that those contentions could be raised in that appeal despite the absence of a certificate.³

II. Discussion

Although there was no authority on the certificate issue when we requested briefing from the parties on that issue, the Second District Court of Appeal published its decision in People v. Hurlic (2018) 25 Cal.App.5th 50, 235 Cal.Rptr.3d 255 ( Hurlic ) shortly after the Attorney General filed his supplemental response brief. Defendant’s supplemental reply brief adopted the Second District’s analysis, which is similar to the Attorney General’s analysis.

Hurlic had entered into a plea agreement for an agreed term that included 20 years for a firearm enhancement. ( Hurlic , supra , 25 Cal.App.5th at pp. 53-54, 235 Cal.Rptr.3d 255.) He was sentenced in September 2017, and his notice of appeal was filed in October 2017. He did not obtain a certificate of probable cause. Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620), which amended section 12022.53 to grant trial courts discretion to strike firearm enhancements, took effect in January 2018, while Hurlic’s appeal was pending. ( Hurlic , at p. 54, 235 Cal.Rptr.3d 255.) Section 12022.53 now provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2; § 12022.53, subd. (h).) On appeal, Hurlic argued that he was entitled to a remand for the trial court to exercise its newly granted discretion under Senate Bill No. 620. The Attorney General argued that Hurlic could not raise this issue on appeal because he had entered into an agreed-term plea agreement and had not obtained a certificate of probable cause....