People v. Hurlic

• Decision Date: 09 July 2018
• Docket Number: B286082
• Citation: 25 Cal.App.5th 50,235 Cal.Rptr.3d 255
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daryl Glen HURLIC, Defendant and Appellant.

25 Cal.App.5th 50

235 Cal.Rptr.3d 255

The PEOPLE, Plaintiff and Respondent,

v.Daryl Glen HURLIC, Defendant and Appellant.

B286082

Court of Appeal, Second District, Division 2, California.

Filed July 9, 2018

Certified for Partial Publication.^*

Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Acting Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

HOFFSTADT, J.

As a general rule, a criminal defendant who enters a guilty or no contest plea with an agreed-upon sentence may challenge that sentence on appeal only if he or she first obtains a certificate of probable cause from the trial court. ( Pen. Code, § 1237.5, subd. (a) ;¹ People v. Panizzon (1996) 13 Cal.4th 68, 76, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ( Panizzon ); People v. Cuevas (2008) 44 Cal.4th 374, 384, 79 Cal.Rptr.3d 303, 187 P.3d 30 ( Cuevas ).) Does this general rule apply when the defendant’s challenge to the agreed-upon sentence is based on our Legislature’s enactment of a statute that retroactively grants a trial court the discretion to waive a sentencing enhancement that was mandatory at the time it was incorporated into the agreed-upon sentence? We conclude that the answer is "no," and hold that a certificate of probable cause is not required in these narrow circumstances. Because we are unable to say that there is "no reasonable possibility" that the trial court would decline to exercise its newfound sentencing discretion, we vacate the judgment and remand for a new sentencing hearing to decide whether to exercise that discretion.

FACTS AND PROCEDURAL BACKGROUND

The People charged Daryl Glen Hurlic (defendant) with three counts of attempted premeditated murder (§§ 187, subd. (a) & 664), and further alleged that those crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C), (4) ) and involved a principal’s personal and intentional use and discharge of a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d) ).

In March 2017, defendant accepted the People’s offer of a 25-year prison sentence. In accepting this offer, defendant (1) entered a no contest plea to a single count of attempted murder after the People struck the premeditation allegation as to that count, and (2) admitted to a 20-year sentencing enhancement for the personal discharge of a firearm under section 12022.53, subdivision (c).² Defendant did not waive his right to appeal.

Six months later, in September 2017, the trial court imposed the agreed-upon sentence of 25 years in prison and dismissed the remaining two counts of attempted premeditated murder.

On October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.) into law, effective January 1, 2018. Senate Bill No. 620 amended section 12022.53 to grant trial courts, for the first time, the discretion to strike section 12022.53’s firearm enhancements. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)

On Halloween 2017, defendant filed a timely notice of appeal. He did not check the box on the first page indicating that his appeal "challenge[d] the validity of the plea or admission," but, in the blank space where defendants are to spell out why they are requesting a certificate of probable cause, defendant wrote that he sought to avail himself of "the new Senate Bill 620."

No trial court issued a certificate of probable cause.

DISCUSSION

Defendant argues that he is entitled to ask the trial court to exercise its newfound discretion to strike the 20-year firearm enhancement. The People respond that we may not entertain defendant’s appeal because he did not obtain a certificate of probable cause and that a remand for resentencing would in any event be futile. The parties’ arguments accordingly present two questions: (1) Is a certificate of probable cause required, and (2) Would a remand for resentencing in this case be futile?

I. Necessity for Certificate of Probable Cause

A. Certificates of probable cause, generally

A defendant who seeks to appeal from a "judgment of conviction" after entering a "plea of guilty or" no contest must first (1) file with the trial court a sworn, written statement "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," and (2) obtain from the trial court a certificate of probable cause attesting that at least one of the defendant’s stated grounds "is not clearly frivolous and vexatious." ( § 1237.5 ; Cal. Rules of Court, rule 8.304(b) ; People v. Holland (1978) 23 Cal.3d 77, 84, 151 Cal.Rptr. 625, 588 P.2d 765, original italics; cf. People v. Arriaga (2014) 58 Cal.4th 950, 960, 169 Cal.Rptr.3d 678, 320 P.3d 1141 [certificate of probable cause not required when defendant appeals an " ‘order made after judgment’ "].)

Consistent with its purpose of "discourag[ing] and weed[ing] out frivolous or vexatious appeals" following a defendant’s voluntary entry into a plea " ‘in exchange for specified benefits such as the dismissal of other counts or an agreed’ "-upon sentence ( Panizzon , supra , 13 Cal.4th at pp. 75, 80, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ; People v. Johnson (2009) 47 Cal.4th 668, 676, 101 Cal.Rptr.3d 332, 218 P.3d 972 ( Johnson ) ), the certificate of probable cause requirement is aimed at (and consequently applies to) claims that operate "in substance [as] a challenge to the validity of the plea" ( Panizzon , at p. 76, 51 Cal.Rptr.2d 851, 913 P.2d 1061, original italics; People v. McNight (1985) 171 Cal.App.3d 620, 624, 217 Cal.Rptr. 393 ). "[T]he crucial issue," our Supreme Court has explained, "is what the defendant is challenging, not the time or manner in which the challenge is made." ( People v. Ribero (1971) 4 Cal.3d 55, 63, 92 Cal.Rptr. 692, 480 P.2d 308.) In light of this focus, the certificate of probable cause requirement does not apply to claims "that arose after entry of the plea and do not affect the plea’s validity" ( Cal. Rules of Court, rule 8.304(b)(4)(B) ), such as "issues regarding" post-plea "proceedings held ... for the purpose of determining the degree of the crime and the penalty to be imposed." ( Panizzon , at p. 74, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ; Johnson , at pp. 676-677, 101 Cal.Rptr.3d 332, 218 P.3d 972 ; People v. Ward (1967) 66 Cal.2d 571, 574, 58 Cal.Rptr. 313, 426 P.2d 881.) Our Legislature has also expressly carved out appeals challenging search and seizure rulings. (§ 1538.5, subd. (m); Cal. Rules of Court, rule 8.304(b)(4)(A).)

The question presented in this case regarding the necessity of a certificate of probable cause lies at the intersection of two lines of authority. Reconciling them is a question of law we decide de novo. ( People v. Alvarez (1996) 14 Cal.4th 155, 182, 58 Cal.Rptr.2d 385, 926 P.2d 365.)

The first line of authority involves the law interpreting the certificate of probable cause requirement in section 1237.5. This body of law draws a line between pleas in which the parties agree that the court will impose a specific, agreed-upon sentence, and pleas in which the parties agree that the court may impose any sentence at or below an agreed-upon maximum. A certificate of probable cause is required for the former ( Cuevas , supra , 44 Cal.4th at pp. 381-382, 79 Cal.Rptr.3d 303, 187 P.3d 30 ; Panizzon , supra , 13 Cal.4th at pp. 78-80, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ; see generally Johnson , supra , 47 Cal.4th at p. 678, 101 Cal.Rptr.3d 332, 218 P.3d 972 ), but not the latter (except where the defendant challenges the legal validity of the maximum sentence itself) ( People v. French (2008) 43 Cal.4th 36, 45-46, 73 Cal.Rptr.3d 605, 178 P.3d 1100 ; People v. Buttram (2003) 30 Cal.4th 773, 777, 790-791, 134 Cal.Rptr.2d 571, 69 P.3d 420 ; cf. People v. Shelton (2006) 37 Cal.4th 759, 763, 37 Cal.Rptr.3d 354, 125 P.3d 290 ( Shelton ) [certificate of probable cause required to challenge validity of agreed-upon maximum sentence under section 654] ). This differential treatment flows directly from the substance of the parties’ agreement: Where the parties agree to a specific sentence, the court’s "[a]cceptance of the agreement binds the court and the parties to the agreement" ( People v. Segura (2008) 44 Cal.4th 921, 930, 80 Cal.Rptr.3d 715, 188 P.3d 649 ( Segura ) ), and a defendant’s challenge to the specific sentence is "in substance a challenge to the validity of the plea" ( Panizzon , at p. 76, 51 Cal.Rptr.2d 851, 913 P.2d 1061, original italics). But where the parties agree to any sentence at or beneath an agreed-upon maximum, that "agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority" do not attack the validity of the plea and "will be reviewable on appeal" without a certificate of probable cause. ( Buttram , at pp. 790-791, 134 Cal.Rptr.2d 571, 69 P.3d 420.) Because the parties in this case agreed to a specific, 25-year prison sentence, this line of authority suggests that appellate review is permissible only if defendant first obtains a certificate of probable cause.

The second line of authority involves the law governing the retroactivity of new criminal statutes. Although new criminal statutes are presumed to operate prospectively (§ 3), that presumption is rebuttable: Our Legislature or the voters may "expressly ... declare[ ]" an intent to apply the new law retroactively (ibid. ); and, absent an express indication to the contrary, courts will infer an intent to apply a new law retroactively to all nonfinal convictions where that new law "mitigat[es]" or "lessens" "the punishment for a particular criminal offense" ( People v. Brown (2012) 54 Cal.4th 314, 324, 142 Cal.Rptr.3d 824, 278 P.3d 1182 ; ...