People v. Galindo

• Decision Date: 22 May 2019
• Docket Number: A154509
• Citation: 35 Cal.App.5th 658,247 Cal.Rptr.3d 553
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sammuel Paul GALINDO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

35 Cal.App.5th 658

247 Cal.Rptr.3d 553

The PEOPLE, Plaintiff and Respondent,

v.Sammuel Paul GALINDO, Defendant and Appellant.

A154509

Court of Appeal, First District, Division 1, California.

Filed May 22, 2019

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan and René A. Chacón, Deputy Attorneys General for Plaintiff and Respondent.

Margulies, J.Defendant Sammuel Paul Galindo pled no contest to mayhem and admitted, among other things, two prior serious felony conviction allegations pursuant to a plea bargain. He now appeals from the trial court's imposition of a 19-year prison sentence pursuant to the negotiated plea. Defendant's sole contention on appeal is that his case must be remanded for resentencing under Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393), which allows trial courts to decide whether to strike or dismiss prior serious felony convictions, a discretionary authority they lacked at the time defendant was sentenced. The Attorney General contends defendant's appeal must be dismissed because he did not obtain a certificate of probable cause.

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 lacked to strike or dismiss the enhancements. (See People v. Fox (2019) 34 Cal.App.5th 1124, 246 Cal.Rptr.3d 873 (Fox ) [dismissing appeal due to lack of certificate of probable cause]; People v. Hurlic (2018) 25 Cal.App.5th 50, 235 Cal.Rptr.3d 255 ( Hurlic ) [remanding for resentencing under Sen. Bill No. 620 ]; People v. Baldivia (2018) 28 Cal.App.5th 1071, 239 Cal.Rptr.3d 704 ( Baldivia ) [same].) We find persuasive the analysis of a different panel of this Division in Fox , and for similar reasons conclude defendant's appeal is barred by his failure to obtain a certificate of probable cause. Accordingly, we dismiss the appeal.

I. BACKGROUND

On December 28, 2017, the Mendocino County District Attorney filed a complaint charging defendant with one count of mayhem ( Pen. Code,¹ § 203; count one), and one count of criminal threats (§ 422; count two). The complaint alleged two prior strikes (§§ 667, 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and three prior prison term commitments (§ 667.5, subd. (b)). The same day, the Division of Adult Parole Operations filed a petition to revoke defendant's parole.

Defendant pled no contest to mayhem, one strike, two prior serious felony convictions, and admitted one prior prison term commitment, pursuant to a negotiated plea deal promising a 19-year state prison term.² The trial court also found defendant in violation of parole pursuant to his plea. The trial court imposed the 19-year sentence on May 15, 2018. Defendant did not waive his right to appeal.

Defendant timely appealed from both the parole revocation and felony cases. On both notices of appeal, defendant checked the boxes indicating the appeals challenged the validity of the plea and were based on the sentence or other matters occurring after the plea that do not affect its validity. The trial court denied a certificate of probable cause in both cases.

II. DISCUSSION

A. Application of Senate Bill No. 1393

On September 30, 2018, the Governor signed Senate Bill 1393, which amends sections 667, subdivision (a) and 1385, subdivision (b) to give trial courts discretion to strike or dismiss prior felony conviction enhancement allegations. (§§ 667, subd. (a), 1385, subd. (b), as amended by Stats. 2018, ch. 1013, §§ 1, 2.) Defendant contends because the law went into effect on January 1, 2019, before the judgment in his case was final, he is entitled to a remand for a new sentencing hearing at which the trial court may decide whether to exercise its discretion to strike or dismiss the enhancements.

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 subsequent proceedings concerning the degree of the crime and penalty to be imposed. ( Johnson, supra , 47 Cal.4th at pp. 676–677, 101 Cal.Rptr.3d 332, 218 P.3d 972 ; see Cal. Rules of Court, rule 8.304(b)(4).) " ‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, 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.)

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.) "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...