People v. Ellis
Decision Date | 24 December 2019 |
Docket Number | F076421 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Charles Patrick ELLIS, Defendant and Appellant. |
Gregory L. Cannon, San Diego, 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.
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, 239 Cal.Rptr.3d 704 ( Baldivia ); People v. Hurlic (2018) 25 Cal.App.5th 50, 53, 235 Cal.Rptr.3d 255 ( 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, 239 Cal.Rptr.3d 558 ( Garcia ).) The judgment is otherwise affirmed.
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, 95 S.Ct. 2525, 45 L.Ed.2d 562, 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, 53 Cal.Rptr.2d 789, 917 P.2d 628 ( 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.
With respect to plea bargains, " ( People v. Segura (2008) 44 Cal.4th 921, 929–930, 80 Cal.Rptr.3d 715, 188 P.3d 649 ( Segura ); accord, People v. Clancey (2013) 56 Cal.4h 562, 569–570, 155 Cal.Rptr.3d 485, 299 P.3d 131 ; People v. Martin (2010) 51 Cal.4th 75, 79, 119 Cal.Rptr.3d 99, 244 P.3d 496 ( Martin ).)
( Segura, supra , 44 Cal.4th at pp. 930–931, 80 Cal.Rptr.3d 715, 188 P.3d 649 ; accord, Martin, supra , 51 Cal.4th at p. 79, 119 Cal.Rptr.3d 99, 244 P.3d 496.) However, " ( Segura, supra , at p. 931, 80 Cal.Rptr.3d 715, 188 P.3d 649 ; accord, Martin, supra , at p. 79, 119 Cal.Rptr.3d 99, 244 P.3d 496.)
However, ( Doe v. Harris (2013) 57 Cal.4th 64, 73–74, 158 Cal.Rptr.3d 290, 302 P.3d 598 ( Doe ), italics added; accord, Harris v. Superior Court (2016) 1 Cal.5th 984, 990–991, 209 Cal.Rptr.3d 584, 383 P.3d 648 ( 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."
"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, 184 Cal.Rptr.3d 715, 343 P.3d 895 ; accord, People v. Arriaga (2014) 58 Cal.4th 950, 958, 169 Cal.Rptr.3d 678, 320 P.3d 1141 ; People v. Totari (2002) 28 Cal.4th 876, 881, 123 Cal.Rptr.2d 76, 50 P.3d 781.) ...
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