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Remand to strike enhancements can void plea bargain

People v. Stamps, 2020 WL 3525176 (California Supreme Court; S255843: June 25, 2020)


Stamps agreed to a plea bargain that included a prior serious felony enhancement (Pen. Code, § 667, subd. (a)). While his appeal was pending, a new law went into effect that gave the trial court authority to strike a serious felony enhancement in furtherance of justice (Pen. Code, § 1385, subd. (a)), a power it did not previously have. The California Supreme Court held that a certificate of probable cause (Pen. Code, § 1237.5) was not necessary to claim on appeal that the new law applied to him retroactively;

The new law applies because his case is not yet final on appeal. If the court chooses to strike the enhancement, its decision will have consequences to the plea agreement.


William Stamps was charged with three counts of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). The complaint also alleged two prior first degree burglary convictions as serious felonies under the “Three Strikes” law and the serious felony enhancement provision and three state prison prior convictions (Pen. Code, § 667.5, subd. (b).)

With a convictio, Stamps was facing  the 25-years-to-life provisions of the Three Strikes law (Pen. Code, § 1170.12, subd. (c)(2)) along with any applicable fixed-term enhancements.

Stamps pled to one first degree burglary, admitting one serious felony conviction, and was sentenced to nine-year prison sentence. Stamps  filed a notice of appeal, and sought a certificate of probable cause (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)), which the trial court denied.

On September 30, 2018, the governor approved Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) allowing a trial court to dismiss a serious felony enhancement in furtherance of justice, effective January 1, 2019.

On Appeal, Stamps claimed that  in light of Senate Bill 1393, his case should be remanded to the trial court to exercise its discretion whether to strike the serious felony enhancement. The Attorney General argued  that Stamps’  appeal was not cognizable because he failed to obtain a certificate of probable cause. The Court of Appeal concluded a certificate was not required and Senate Bill 1393 applied retroactively to defendant. It then remanded, permitting the trial court to exercise its discretion whether to strike the enhancement.(People v. Stamps, supra, 34 Cal.App.5th at pp. 120-124, 245 Cal.Rptr.3d 821; see discussion post.) The Supreme Court agreed on the certificate question but modifed the remand order.

No certificate of probable cause needed because appeal does not attack the plea

Generally, a defendant may appeal “from a final judgment of conviction.” (Pen. Code, § 1237, subd. (a).) But a defendant who appeals  from a guilty or no contest plea, must file a written statement with the trial court,  executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. The trial court must execute and file a certificate of probable cause for the appeal with the clerk of the court. Section  1237.5 allows an  exception: The defendant may take an appeal without a statement of certificate grounds or a certificate if the appeal goes to postplea matters not challenging his plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5.” (People v. Mendez (1999) 19 Cal.4th 1084, 1096, 81 Cal.Rptr.2d 301, 969 P.2d 146; People v. Panizzon (1996) 13 Cal.4th 68, 74, 51 Cal.Rptr.2d 851, 913 P.2d 1061 (Panizzon); see Cal. Rules of Court, rule 8.304(b)(4).) A certificate of probable cause  discourages  frivolous appeals following a guilty or no contest plea and promotes  judicial economy by screening out baseless postplea appeals before time and money are spent on record preparation, briefing and appellate review. (See Panizzon, at pp. 75-76, 51 Cal.Rptr.2d 851, 913 P.2d 1061.)

Stamps does not seek to put aside or withdraw his plea but seeks relief because the law subsequently changed to his potential benefit. His appeal does not attack the plea itself and does not require a certificate of probable cause.

Estrada requires retroactive application

Under In re Estrada (1965) 63 Cal.2d 740, Senate Bill 1393 applies to Stamps’ case retroactively because his judgment is not yet final. Eliminating the prior restriction on the court’s ability to strike a serious felony enhancement in furtherance of justice is  an ameliorative change within the meaning of Estrada.

Remand with limitations and consequences to plea agreement

Upon remand,  the court may withdraw its prior approval of the plea agreement. The court’s authority to withdraw its approval of a plea agreement has been described as “near-plenary.” (People v. Stringham (1988) 206 Cal.App.3d 184. The court’s exercise of its new discretion to strike the serious felony enhancement would fall within the court’s  discretion to withdraw its prior approval of the plea agreement.

Stamps has the choice  to seek relief under Senate Bill 1393. As Ellis reasoned: “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.” (Ellis, supra, 43 Cal.App.5th at p. 944, 257 Cal.Rptr.3d 79.)

Stamps should be allowed to make an informed decision whether to seek relief on remand.

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