People v. Enlow

Decision Date10 June 1998
Docket NumberNo. D027175,D027175
Citation64 Cal.App.4th 850,75 Cal.Rptr.2d 402
Parties, 98 Cal. Daily Op. Serv. 4477, 98 Daily Journal D.A.R. 6098 The PEOPLE, Plaintiff and Respondent, v. Daniel Vaughn ENLOW, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION ON REHEARING

KREMER, Presiding Justice.

In July 1996, Daniel Vaughn Enlow pleaded guilty to one count of auto theft (Veh.Code, § 10851, subd. (a)) based on an auto theft he committed in November 1995 and admitted having a prior auto theft conviction. He also admitted having a prior conviction within the meaning of the three strikes law (Pen.Code, § 667, subds. (b)-(i)). In exchange for pleading guilty, the prosecutor dismissed numerous other counts as well as allegations Enlow had served four prior prison terms (Pen.Code, § 667.5, subd. (b)). As stipulated by the plea agreement, the court sentenced Enlow to an eight-year term. This term reflected a middle term of four years for a recidivist auto thief (Pen.Code, § 666.5) doubled because of Enlow's prior strike conviction.

On appeal, Enlow contends that his sentence must be reduced by two years because the Legislature reduced the punishment in Penal Code section 666.5 for recidivist auto thieves as of January 1, 1997 before Enlow's case became final. We conclude that Enlow is precluded from raising the matter on appeal not only because he failed to obtain a certificate of probable cause and because he failed to seek withdrawal of his guilty plea, but also because he is not entitled to be sentenced under the post-January 1, 1997, version of the statute.

DISCUSSION
I Failure to Obtain Certificate of Probable Cause

Pursuant to Penal Code section 1237.5, "[n]o appeal shall be taken" from a judgment of conviction obtained by plea of guilty or no contest unless the defendant has filed a written statement of cognizable grounds for the appeal--grounds "going to the legality of the proceedings"--and the trial court has certified the existence of probable cause for appeal. The courts have recognized two exceptions to this rule: (1) "issues relating to the validity of a search or seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m)" and (2) "issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Jones (1995) 10 Cal.4th 1102, 1106, 43 Cal.Rptr.2d 464, 898 P.2d 910.) No certificate of probable cause was obtained in this case.

Enlow contends a certificate of probable cause was not necessary in this case because he is not challenging the validity of his guilty plea, only the sentence imposed. The Supreme Court, however, in People v. Panizzon (1996) 13 Cal.4th 68, 78, 51 Cal.Rptr.2d 851, 913 P.2d 1061, held that a certificate of probable cause is necessary when a defendant challenges a stipulated sentence which was an integral part of the plea bargain. 1 Here, in exchange for Enlow's guilty plea, the prosecution dismissed numerous counts and the sentence was negotiated by the parties to be a stipulated term of eight years. As in Panizzon, the stipulated sentence was an integral part of the plea agreement. Accordingly, a certificate of probable cause was necessary and Enlow's failure to obtain a

certificate of probable cause bars review on appeal.

II Challenge of Sentence Without Seeking to Withdraw the Guilty Plea

Even if we were to assume a certificate of probable cause was not necessary here, we would not order Enlow's sentence reduced. As explained in part I, ante, Enlow's sentence was an integral part of his plea agreement which involved the dismissal of numerous other counts. "Critical to plea bargaining is the concept of reciprocal benefits. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from the concessions made." (People v. Collins (1978) 21 Cal.3d 208, 214, 145 Cal.Rptr. 686, 577 P.2d 1026.) Relief for the prosecutor when a defendant challenges part of a plea agreement may take the form of restoring the dismissed counts and proceeding to trial (id. at p. 215, 145 Cal.Rptr. 686, 577 P.2d 1026) or, alternatively, if the circumstances permit, the reviewing court may find a way to achieve the same result and give both sides the benefit of the bargain. (See People v. Harvey (1980) 112 Cal.App.3d 132, 139-140, 169 Cal.Rptr. 153.)

Since the prison term was specifically negotiated by the parties, a reduction in the term would deprive the prosecution of one of the benefits for which it had bargained, i.e., an eight-year prison term. Enlow is not entitled to retain the benefit of the agreement (the dismissal of numerous other counts) while depriving the prosecution of its benefit (the eight-year term). Therefore, it would be improper for us to reduce the sentence. Enlow's remedy would be to seek withdrawal of his guilty plea.

III No Reduction in Sentence is Merited

Finally, we conclude Enlow's argument, on the merits, is unpersuasive.

When Enlow committed the crime and was sentenced, the 1993 version of Penal Code section 666.5 was in effect. This statute provided the prison terms for recidivist auto thieves were three, four or five years. (Pen.Code, § 666.5, subd. (a).) The statute also provided that as of January 1, 1997, the increased prison terms would be repealed (i.e., would "sunset") and revert to the pre-1993 levels of two, three or four years. (Pen.Code, § 666.5, subd. (c).)

The 1993 changes were enacted as urgency legislation. The Legislature stated:

"This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: [p] In order to reinstate vehicle theft statutes with enhanced penalties which were repealed on January 1, 1993, it is necessary that this act take immediate effect." (Stats.1993, ch. 1125, § 18, p. 5084.)

Enlow argues that because his sentence was not final before January 1, 1997, the post-January 1997 penalties apply to his case. He contends his case is governed by In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948. In Estrada, the defendant was convicted of escape but before he was sentenced, the Legislature reduced the penalties imposed for an escape committed without force or violence. The Estrada court concluded the defendant was entitled to the ameliorative effect of the changes. The Estrada court stated:

"The problem, of course, is one of trying to ascertain the legislative intent--did the Legislature intend the old or new statute to apply? Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional. It has not done so. We must, therefore, attempt to determine the legislative intent from other factors.

"There is one consideration of paramount importance. It leads inevitably to the conclusion that the Legislature must have intended, and by necessary implication provided, that the amendatory statute should prevail. When the Legislature amends a statute so as to lessen the punishment, it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited More recently, a Supreme Court majority has held that Estrada is inapplicable to a statute temporarily increasing penalties, a statute which was very similar to the one involved in this case. In In re Pedro T. (1994) 8 Cal.4th 1041, 36 Cal.Rptr.2d 74, 884 P.2d 1022, the Supreme Court addressed the legislative intent behind an amendment to Vehicle Code section 10851, effective January 1, 1990, which increased the maximum punishment for vehicle theft from three to four years. Like the statute involved in this case, Vehicle Code section 10851 was enacted as urgency legislation and contained a sunset clause providing the lesser punishment would revert to the earlier levels as of a specified date (January 1, 1993) unless the Legislature otherwise directed. (Stats. 1989, ch. 930, § 12.5, p. 3266.) The petitioner in Pedro T., relying on Estrada, argued that once the sunset provision of the statute took effect, all persons, such as himself whose convictions were not yet final, were entitled to the ameliorative effect of the reinstated lesser punishment.

act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting [64 Cal.App.4th 856] the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (In re Estrada, supra, 63 Cal.2d 740, 744-745, 48 Cal.Rptr. 172, 408 P.2d 948.)

A majority of the Pedro T. court concluded the petitioner was not entitled to the ameliorative effect of the reinstated lesser punishment because, unlike Estrada, the clear legislative intent was that persons who committed crimes during the period of increased punishment were to receive the increased punishment regardless of when their cases became final. The majority noted that the increased...

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