Certificate of probable cause not needed to appeal court’s failure to strike mandatory felony enhancements before SB 1393 enacted

THE PEOPLE, Plaintiff and Respondent, v. CHARLES PATRICK ELLIS, Defendant and Appellant., 2019 WL 7161342 (Cal.App. 5 Dist.) (Cal.App. 5 Dist., 2019)

 SB 1393 gives trial courts discretion to strike five-year prior serious felony enhancements

On January 1, 2019, Senate Bill No. 1393 amended Penal Code sections 667, former subdivision (a)(1), and 1385, former subdivision (b), granting  trial courts the discretion to strike or dismiss the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1).1 (Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393).)

Charles Patrick Ellis, pled guilty to a term that included the then-mandatory five-year enhancement under section 667, former subdivision (a)(1) . His appeal sought relief under Senate Bill No. 1393. He did not obtain a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).)

Ellis entered his plea, was sentenced and filed a notice of appeal approximately one year before Senate Bill No. 1393 was enacted, so his failure to obtain a certificate of probable cause at the time of appeal does not bar his claim on appeal requesting relief under the change in the law. (People v. Baldivia (2018) 28 Cal.App.5th 1071, 1074 (Baldivia); People v. Hurlic (2018) 25 Cal.App.5th 50, 53 (Hurlic).)


Ellis was charged with evading a peace officer (Veh. Code, § 2800.2, subd. (a)) (count 1), two counts of resisting a peace officer by means of threat or violence (§ 69) (counts 2 & 3), possession of methamphetamine for sale (Health & Saf. Code, § 11378 (count 4), false personation (§ 529, subd. (a)(3)) (count 5), misdemeanor hit and run with property damage (Veh. Code, § 20002, subd. (a)) (count 6), and misdemeanor resisting arrest (§ 148, subd. (a)(1)) (count 7). The information alleged that defendant suffered a prior serious felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and alleged a gang enhancement (§ 186.22, subd. (b)(1)), a prior serious felony conviction enhancement (§ 667, subd. (a)(1)) and six prior prison term enhancements (§ 667.5, subd. (b)).

Ellis pled no contest to evading a peace officer (count 1) and possession of methamphetamine for sale (count 4), and he admitted the prior strike conviction, the prior serious felony conviction enhancement and the gang enhancement. The remaining counts and the prior prison term enhancements were dismissed; and the trial court struck the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530 (Romero) and sentenced defendant on count 1 to the lower term of 16 months, plus two years for the gang enhancement and five years for the prior serious felony conviction enhancement, for a total determinate term of eight years four months. On count 4, the court sentenced defendant to a concurrent lower term of 16 months

Appellate Jurisdiction in Absence of Certificate of Probable Cause

Plea Bargains

A ‘negotiated plea agreement is a form of contract,’ and  is interpreted according to general contract principles. “A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Once the court has accepted the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea Citation.]’ ” (” (People v. Segura (2008) 44 Cal.4th 921, 923 (Segura).) The terms of the plea agreement can be affected by changes in the law.” (Doe v. Harris (2013) 57 Cal.4th 64, 73–74 (Doe),; accord, Harris v. Superior Court (2016) 1 Cal.5th 984, 990–991 (Harris).)

The Legislature recently expressly relied, in part, on the rule in Doe when it added section 1016.8 to the Penal Code effective January 1, 2020. (Assem. Bill No. 1618 (2019-2020 Reg. Sess.) ch. 586, § 1.) Subdivision (b) of section 1016.8 provides: “A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy.”\

Certificate of Probable Cause

A defendant may appeal from a final judgment of conviction, unless otherwise limited by sections 1237.1 and 1237.5. (§ 1237; see Cal. Rules of Court, rule 8.304(b) ….) Section 1237.5, which is at issue here, provides in full: ‘No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant 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. [¶] (b) 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 weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted.’ ” (People v. Maultsby (2012) 53 Cal.4th 296, 298–299, quoting People v. Buttram (2003) 30 Cal.4th 773, 790, fn. omitted; accord, People v. Panizzon (1996) 13 Cal.4th 68, 75–76 (Panizzon).)

Senate Bill No. 1393 Applies Retroactively Under the Estrada Rule 

“[W]e presume that newly enacted legislation mitigating criminal punishment reflects a determination that the ‘former penalty was too severe’ and that the ameliorative changes are intended to ‘apply to every case to which it constitutionally could apply,’ which would include those ‘acts committed before its passage[,] provided the judgment convicting the defendant of the act is not final.’ ( [In re] Estrada [ (1965) ] 63 Cal.2d [740,] 745 [ (Estrada) ].)

The Estrada rule rests on the presumption that ‘a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 881–882, italics added; accord, People v. Valenzuela (2019) 7 Cal.5th 415, 428; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307–308.)

Courts of Appeal considering Senate Bill No. 1393 and, in an analogous context, Senate Bill No. 620, have uniformly held that the changes apply retroactively to judgments not yet final on appeal. (E.g., People v. Zamora (2019) 35 Cal.App.5th 200, 207–208 [Sen. Bills Nos. 602 & 1393]; Garcia, supra, 28 Cal.App.5th at pp. 972–973 [Sen. Bill No. 1393]; People v. Chavez (2018) 22 Cal.App.5th 663, 711–712 [Sen. Bill No. 620]; People v. Arredondo (2018) 21 Cal.App.5th 493, 506–507 [Sen. Bill No. 620].) The People concede the point and we agree. As Senate Bill No. 1393 does not contain a savings clause and there is no indication that the Legislature intended any limitation on its retroactive application, it applies to this case in accordance with the Estrada rule.

The authors of SB 1393 explained the need to amend existing law as follows: “ ‘Nearly every sentence enhancement in California can be dismissed at the time of sentencing if the judge finds that doing so would serve the interest of justice. However, under existing law people with current and prior serious felony convictions receive a mandatory five-year enhancement. As a result, judges lack the discretion to tailor these sentences based on the facts of the case, the defendant’s history and culpability or other potential mitigating factors. This has resulted in mandatory additional terms for thousands of individuals incarcerated throughout California’s prisons. This rigid and arbitrary system has meted out punishments that are disproportionate to the offense, which does not serve the interests of justice, public safety, or communities.’ ” (Sen. Rules Com., Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 1393 (2017-2018 Reg. Sess.) as amended May 9, 2018.) The plain language of Senate Bill No. 1393 and the legislative history apply with equal force to all convictions.

The Legislature made clear that parties to a plea bargain may not insulate that bargain from future ameliorative changes in the law that may apply and any such provision is void as against public policy. (§ 1018.6, subds. (a)(1), (b), eff. Jan. 1, 2020.)

Plea bargain may be withdrawn if defendant appeals under 1393 to seek striking of enhancement

Senate Bill No. 1393 does not entitle defendants who negotiated stipulated sentences “to whittle down the sentence ‘but otherwise leave the plea bargain intact’  but application of the Estrada and Doe/Harris rules to Senate Bill No. 1393 compels the conclusion that defendant is entitled to seek the benefit of change in the law.

The trial court’s authority under Senate Bill No. 1393 is discretionary and is confined to those instances in which the court determines that it is “in the furtherance of justice” to exercise discretion. (§ 1385, subd. (b)(1).) In many cases, the trial court may simply decline to exercise its discretion to strike the enhancement and that will end the matter.

Once a court withdraws its approval of a plea bargain, the court cannot ‘proceed to apply and enforce certain parts of the plea bargain, while ignoring’ others. Instead, the court must restore the parties to the status quo ante.” (People v. Woods (2017) 12 Cal.App.5th 623, 630–631, quoting In re Ricardo C. (2013) 220 Cal.App.4th 688, 699 & citing Segura, supra, at p. 931; accord, People v. Silva (2016) 247 Cal.App.4th 578, 587; People v. Kim (2011) 193 Cal.App.4th 1355, 1361–1362; see §§ 1018, 1192.5.)

Thus, while there may be cases in which the trial court will elect to strike the serious felony conviction enhancement, it is not without consequence to the plea bargain.

Given that defendants in criminal cases presumably obtained some benefit from the plea agreement, we anticipate that there will be defendants who determine that, notwithstanding their entitlement to seek relief based on the change in the law, their interests are better served by preserving the status quo. That determination, however, lies in each instance with the defendant.

Although Ellis did not obtain a certificate of probable cause in this case, the issue he now advances arises from a retroactive change in the law effected well after the trial court took his plea and sentenced him. Rather than attempting to attack the validity of his plea, he is attempting to seek relief under a retroactive change in the law that he could not have foreseen at the time and that his plea. Here, defendant was not required to obtain a certificate of probable cause to request relief pursuant to Senate Bill No. 1393.

The matter was  remanded for the limited purpose of allowing defendant an opportunity to request relief under Senate Bill No. 1393. The judgment was otherwise affirmed.

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