People v. Stamps, A154091

• Court: California Court of Appeals
• Writing for the Court: POLLAK, P. J.
• Citation: 34 Cal.App.5th 117,245 Cal.Rptr.3d 821
• Parties: The PEOPLE, Plaintiff and Respondent, v. William STAMPS, Defendant and Appellant.
• Docket Number: A154091
• Decision Date: 09 April 2019

34 Cal.App.5th 117
245 Cal.Rptr.3d 821

The PEOPLE, Plaintiff and Respondent,
v.
William STAMPS, Defendant and Appellant.

A154091

Court of Appeal, First District, Division 4, California.

Filed April 9, 2019

Counsel for plaintiff and appellant: Xavier Becerra, Attorney General, Gerald A. Engler Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General

Counsel for defendant and appellant: James S. Donnelly-Saalfield, Sausalito, by appointment of the Court of Appeal

POLLAK, P. J.

34 Cal.App.5th 119

In exchange for a stipulated nine-year sentence and the dismissal of other counts, defendant William Stamps plead no contest to one count of residential burglary ( Pen. Code,¹ § 459) and admitted a prior serious felony conviction (§ 667, subds. (a)(1) ). The court sentenced defendant to the stipulated prison term, which consisted of the low term of two years for the burglary doubled pursuant to sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1) and a five-year enhancement pursuant to section 667, subdivision (a)(1). On appeal, defendant contends the matter must be remanded so that the trial court may exercise its discretion to strike the five-year serious felony conviction enhancement pursuant to recently enacted Senate Bill No. 1393. (Legis. Counsel’s Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2.) We

245 Cal.Rptr.3d 823

agree and, accordingly, remand for a new sentencing hearing to decide whether to exercise that discretion.

Background

Defendant was sentenced on January 10, 2018. On March 29, 2018, defendant timely filed a notice of appeal. His request for a certificate of probable cause was denied.²

34 Cal.App.5th 120

At the time of defendant’s sentencing, the trial court did not have discretion to strike an enhancement imposed under section 667, subdivision (a)(1). (Pen. Code, former § 1385, subd. (b); Stats. 2014, ch. 137, § 1, eff. Jan. 1, 2015 ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667."].) On September 30, 2018, the Governor signed Senate Bill No. 1393 that, effective January 1, 2019, amended section 1385 to delete former subdivision (b) and give trial courts the discretion to dismiss five-year sentence enhancements under section 667, subdivision (a). (See Legis. Counsel’s Dig., Sen. Bill No. 1393 ["This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of [a] 5-year enhancement ...."].)

Discussion

Defendant contends that because his case is not yet final and the recent amendment applies retroactively, the judgment should be reversed and the matter remanded for resentencing to allow the trial court an opportunity to exercise its discretion to strike the enhancement. The Attorney General agrees that the Senate Bill No. 1393 amendment applies retroactively ( People v. Garcia (2018) 28 Cal.App.5th 961, 973, 239 Cal.Rptr.3d 558 ), but insists that defendant is not entitled to the requested relief because his plea bargain contained a stipulated sentence of nine years and he was sentenced in conformity with the negotiated plea.³

34 Cal.App.5th 121

245 Cal.Rptr.3d 824

Initially, the Attorney General argues that the appeal should be dismissed because defendant did not obtain a certificate of probable cause. (§ 1237.5.) While ordinarily the failure to obtain a certificate of probable cause would preclude a challenge to a negotiated sentence, in People v. Hurlic (2018) 25 Cal.App.5th 50, 235 Cal.Rptr.3d 255 ( Hurlic ), the court held that the ordinary rule does not apply when the challenge is based on a retroactive change in the law. In its well-reasoned decision, the court gave three reasons for applying "the law governing the retroactivity of new criminal statutes" ( id. at p. 56, 235 Cal.Rptr.3d 255 ) rather than "the law interpreting the certificate of probable cause requirement in section 1237.5" ( id. at p. 55, 235 Cal.Rptr.3d 255 ). First, absent an explicit provision in a plea agreement to the contrary, the plea must be deemed to incorporate the subsequently enacted legislation. ( Id. at p. 57, 235 Cal.Rptr.3d 255.) Second, the purpose of the certificate of probable cause requirement is to weed out frivolous appeals and that purpose would not be served where "the defendant’s entitlement to a new law’s retroactive application is undisputed" and therefore "an appeal seeking such application is neither ‘frivolous’ nor ‘vexatious.’ " ( Id. at p. 58, 235 Cal.Rptr.3d 255.) Third, under the rules of statutory construction, "[w]here two statutes conflict, courts give precedence to the later-enacted statute and precedence to the more specific statute." ( Ibid. ; see also People v. Baldivia (2018) 28 Cal.App.5th 1071, 1077, 239 Cal.Rptr.3d 704 ( Baldivia ) [following Hurlic ].) Contrary to the Attorney General’s argument, Hurlic is not based on the rationale that the defendant in that case did not check the box on his notice of appeal indicating he was challenging the validity of his plea but was seeking to avail himself of the new legislation. All of the reasons for the decision explained in Hurlic are fully applicable in the present case.

The Attorney General places heavy reliance on People v. Enlow (1998) 64 Cal.App.4th 850, 75 Cal.Rptr.2d 402, in which the court rejected (for failure to obtain a certificate of probable cause and on the merits) a defendant’s attempt to reduce an agreed upon sentence based on the expiration of the statute that had temporarily increased the penalty to which the defendant had agreed. As the Hurlic court explained, Enlow is "distinguishable because the statutory change in Enlow was not truly a ‘new law’; the statute’s anticipated sunset was already on the books (and thus part of the legal landscape) at the time the plea agreement was negotiated, such that the parties’ agreement to a specific sentence that did not account for the sunset was ‘part of the deal’ and thus his attack on that sentence went to the validity of the plea itself." ( Hurlic, supra, 25 Cal.App.5th at p. 58, 235 Cal.Rptr.3d 255 ; see also Baldivia , supra, 28 Cal.App.5th at p. 1079, 239 Cal.Rptr.3d 704 ["defendant’s appellate contentions were not an attack on the validity of his plea and did not require a

34 Cal.App.5th 122

certificate of probable cause"].)⁴ Like the statutory change in Hurlic, the amendment in the present case was not on the books or anticipated when defendant entered his plea agreement, so that his present appeal is not a challenge to the validity of the plea itself.

The Attorney General argues further that retroactive application of new law

245 Cal.Rptr.3d 825

in this case would deprive the prosecution of the benefit of its plea bargain. Both Hurlic, supra, 25 Cal.App.5th at page 57, 235 Cal.Rptr.3d 255 and Baldivia , supra , 28 Cal.App.5th at pages 1077-1078, 239 Cal.Rptr.3d 704 rejected this argument. As the court explained in Hurlic , "Unless a plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made, ... ‘the general rule in California is that the plea agreement will be " ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.’ " ’ " ( Hurlic , supra , 25 Cal.App.5th at p. 57, 235 Cal.Rptr.3d 255 ; Baldivia, supra, at p. 1077, 28 Cal.App.5th 1071, citing Doe v. Harris (2013) 57 Cal.4th 64, 66, 158 Cal.Rptr.3d 290, 302 P.3d 598 ( Doe ); see also People v. Wright, supra, 31 Cal.App.5th at p. 755, 242 Cal.Rptr.3d 837 ["Although the parties and the trial court may not unilaterally alter the terms of a plea bargain [citation], the Doe court concluded that subsequent statutory enactments or amendments may alter the terms of the plea bargain."].)

In Doe , supra , 57 Cal.4th at pages 66-67, 158 Cal.Rptr.3d 290, 302 P.3d 598, the California Supreme Court held that amendments to the sex offender registration law, which allowed for publication of certain information about registered sex offenders, could be applied to Doe, who had entered into a plea agreement at a time when the law prohibited such public access. The court explained, "[T]he parties to a plea agreement—an agreement unquestionably infused with a substantial public interest and subject to the plenary control of the state—are deemed to know and understand that the state, again subject to the limitations imposed by the federal and state Constitutions, may enact laws that will affect the consequences attending the conviction entered upon the plea." ( Id . at p. 70, 158 Cal.Rptr.3d 290, 302 P.3d 598.) Thereafter, in Harris v. Superior Court (2016) 1 Cal.5th 984, 991, 209 Cal.Rptr.3d 584, 383 P.3d 648 ( Harris ), the California Supreme Court applied Doe to a plea agreement...