People v. Fox, A153133

Decision Date03 May 2019
Docket NumberA153133
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Brian K. FOX, Defendant and Appellant.

Counsel for Defendant and Appellant: Jonathan Soglin, under appointment by the Court of Appeal, Jeremy Price, under appointment by the Court of Appeal

Counsel for Plaintiff and Respondent: Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General

HUMES, P. J. Defendant Brian K. Fox was charged with eight felony counts, including two counts of attempted murder, and several firearm enhancements. To resolve his case, he pleaded guilty to a single count of robbery, admitted to personally using a firearm during the offense, and agreed to be sentenced to 15 years in prison, including 10 years for the firearm enhancement. The trial court accepted the plea and sentenced Fox in accordance with it.

Fox appealed without obtaining a certificate of probable cause from the trial court. He now contends that under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620), he is entitled to a remand not for the purpose of seeking to withdraw his plea, but instead for the purpose of asking the trial court to exercise its discretion under the new legislation to strike the firearm enhancement, potentially reducing his negotiated sentence by 10 years.

We reject Fox's view of Senate Bill No. 620, and in so doing decline to adopt the analysis of People v. Hurlic (2018) 25 Cal.App.5th 50, 235 Cal.Rptr.3d 255 ( Hurlic ) and other decisions following it. We agree that Senate Bill No. 620 applies to defendants whose judgments were not final when the law took effect, that it permits those who did not agree to serve a specific term for a firearm enhancement to seek resentencing, and that it permits those who did agree to a specific sentence to seek to withdraw from their pleas. But we perceive no legislative intent to authorize trial courts to reduce agreed-upon sentences while otherwise permitting defendants to retain the benefits of their plea agreements and avoid the likely risk of having to continue defending against the charges. Fox, who entered his plea after Senate Bill No. 620 was passed but happened to be sentenced before it took effect, is asking for an extraordinary remedy to which no defendants currently being sentenced are entitled. Since the only relief Fox could obtain under Senate Bill No. 620 would require him to challenge the validity of his plea by seeking to withdraw it, we must dismiss his appeal for failure to obtain a certificate of probable cause.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2015, Fox's co-defendant, Eric Espanol, stole a camera from a tourist in San Francisco.1 The tourist and his friends pursued Espanol, who then punched the tourist in the face. Fox pulled up in a car, and as Espanol tried to get in, the tourist and one of his friends struggled with Espanol to regain the camera. Fox then rolled down the car's window, shouted at Espanol to get in, and shot at the tourist, hitting him once. Fox and Espanol fled, but after a police chase they were quickly apprehended in the East Bay.

Fox was charged with eight felony counts—two counts of attempted murder, one count of second degree robbery, two counts of assault with a semiautomatic firearm, one count of evading a peace officer, one count of possession of a firearm by a felon, and one count of unlawfully carrying a loaded firearm—and two misdemeanor counts, both of resisting, obstructing, or delaying a peace officer.2 Numerous enhancement allegations accompanied the first six felony charges, including several firearm enhancements and allegations that the attempted murders were premeditated. The trial court later granted Fox's motion to dismiss one of the counts of attempted murder and one of the counts of assault with a firearm, which both pertained to the tourist's friend.

As part of a plea agreement, Fox pleaded guilty to the robbery count and admitted to personally using a firearm during the offense in exchange for a 15-year prison sentence, composed of a term of five years for the robbery and 10 years for the firearm enhancement.3 The remaining counts and allegations were dismissed. There is no indication in the record that Fox waived his right to appeal.

Fox entered his plea on September 19, 2017, the week after the Legislature passed Senate Bill No. 620 and the day after it was enrolled. He was sentenced on October 11, 2017, the same day the Governor signed the bill into law. Before the trial court pronounced sentence, Fox's trial counsel noted that Fox appeared to misunderstand how his custody credits would be calculated. Counsel also relayed Fox's request that the court strike the firearm enhancement, even though counsel had attempted "to explain to him that a plea deal isn't subject to renegotiation because we've agreed upon the terms of the plea deal. [¶] So the enhancement, even if it becomes discretionary on the Court's part at sentencing to the first of the year, if the Governor signs it into law and it happens, it wouldn't [a]ffect his sentence because he's agreed to a set disposition in exchange for taking 25 to life off the table if he went to trial and was unsuccessful." The court, counsel, and Fox discussed the custody credits issue, but striking the firearm enhancement was not mentioned again. The court then sentenced Fox in accordance with the plea agreement.

Fox filed a notice of appeal in propria persona on December 4, 2017. He sought a certificate of probable cause to enable him to challenge on appeal the validity of the plea, on the basis that his trial counsel "coerce[d] [him] into taking [the] plea offer." The trial court denied the request. In March 2018, this court granted Fox's unopposed request to construe the notice of appeal to include matters occurring after the plea that did not affect the plea's validity and therefore did not require a certificate of probable cause.

Fox then moved in this court for permission to file a late request for a certificate of probable cause in the trial court. Specifically, he sought to request a certificate to permit him to argue on appeal that he should be permitted to withdraw his plea in light of Senate Bill No. 620. This court denied the motion, concluding that Fox's failure to timely seek a certificate of probable cause could not be excused. Fox petitioned for review of this ruling, and the Supreme Court denied the petition in August 2018. He then filed an opening brief raising a single claim: that he does not need to seek to withdraw his plea to be entitled to a remand to permit the trial court to exercise the discretion conferred by Senate Bill No. 620.

II.

DISCUSSION

A. The Certificate of Probable Cause Requirement.

"Under section 1237.5, a defendant cannot appeal after entering a plea of [guilty or] no contest unless he or she ‘has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ and the trial court ‘has executed and filed a certificate of probable cause for such appeal with the clerk of the court.’"The purpose of section 1237.5 is ... ‘to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.’ " ’ " ( People v. Espinoza (2018) 22 Cal.App.5th 794, 798-799, 231 Cal.Rptr.3d 827 ( Espinoza ).) The Supreme Court has emphasized that the certificate rules must "be applied in a strict manner" and that a defendant cannot "obtain review of certificate issues" except by complying with the rules "fully, and, specifically, in a timely fashion." ( People v. Mendez (1999) 19 Cal.4th 1084, 1099, 81 Cal.Rptr.2d 301, 969 P.2d 146 ( Mendez ); People v. Cole (2001) 88 Cal.App.4th 850, 860, 106 Cal.Rptr.2d 174.)

Under California Rules of Court, rule 8.304, a defendant who has entered a plea of guilty need not obtain a certificate of probable cause "if the notice of appeal states that the appeal is based on: [¶] ... [¶] ... Grounds that arose after entry of the plea [that] do not affect the plea's validity." ( Cal. Rules of Court, rule 8.304(b)(4) ; see id. , rule 8.304(b)(1).) But such a statement alone is not dispositive. " ‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty ..., courts must look to the substance of the appeal: "the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made." [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.’ " ( People v. Buttram (2003) 30 Cal.4th 773, 781-782, 134 Cal.Rptr.2d 571, 69 P.3d 420, italics omitted.)

Fox sought and was denied a certificate of probable cause on the custody credits issue. He also unsuccessfully sought leave from this court to file a late request for a certificate of probable cause to permit him to argue on appeal that he should be permitted to withdraw his plea in light of Senate Bill No. 620. (See In re Chavez (2003) 30 Cal.4th 643, 646, 134 Cal.Rptr.2d 54, 68 P.3d 347 ; Mendez , supra , 19 Cal.4th at pp. 1088-1089, 81 Cal.Rptr.2d 301, 969 P.2d 146.) As he points out, the issue he now raises is different: that "without requesting the opportunity to withdraw his plea on remand," he is entitled to have the trial court exercise its discretion under amended section 12022.5, subdivision (c) to determine whether to strike the firearm enhancement. In other words, rather than seeking to withdraw his plea, which would allow the prosecution to reinstate the dismissed charges, he seeks to have ...

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