People v. AlexanderPeople v. Alexander
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BACKGROUND
In April 2017, appellants were charged in a first amended information with 14 counts of second-degree robbery (
Prior to the filing of the amended information, Alexander moved under
In May 2017, pursuant to a negotiated disposition, Alexander pleaded guilty to three counts of robbery (counts 12, 23, and 26) and admitted a prior conviction for attempted robbery and one prior prison term. Farr pleaded guilty to two counts of robbеry (counts 5 and 14) and admitted four prior prison terms.3
Both Alexander and Farr appealed.
DISCUSSION
I. The Trial Court Did Not Err in Denying Appellants’ Motion to Suppress
The
The central issue on appeal is whether the arresting officer‘s testimony regarding the robbery surveillance videos was admissible and sufficient to establish probable cause for the warrantless arrest of appellants.
A. Sergeant Maguire‘s Testimony at the Hearing on the Motion to Suppress
San Francisco Police Sergeant Thomas Maguire investigated a series of 10 robberies in August and September 2012. The suspects were two African-American males, one taller and thinner than the other. Maguire obtained police reports regarding all of the incidents and surveillance videos of eight of the incidents. He viewed and compared the videos multiple times. Maguire testified about his investigation of seven of the robberies.
First, a robbery was reported on August 19, 2012, at the San Bruno Cafe. Another police officer, Sergeant Discenza, gave Sergeant Maguire a surveillance video, saying it came from the cafe robbery. The video showed a single robber in a leather jacket. Maguire identified two photographs as stills from the video, admitted as exhibits 1 and 2.
Second, a robbery was reported on August 26, 2012, at a Round Table Pizza on Mission Street. Sergeant Maguire responded to the scene, interviewed witnesses, and viewed surveillance video that showed two African-American male suspects commit a robbery as described by the witnesses. One suspect was taller and thinner than the оther.
Third, a robbery was reported on August 28, 2012, at a business called Underdog on Irving Street. Sergeant Maguire went to the location and watched a surveillance video, which showed a sole robbery suspect.
Fourth, a robbery was reported on September 7, 2012, at a Burger King. Sergeant Maguire responded to the scene and watched a surveillance video that showed two African-American male suspects, one taller and thinner than the other. Maguire believed they were the same two suspects he had seen in the video from the Round Table robbery. The shorter and heavier suspect was wearing a brown long-sleeved shirt and black shoes with white soles. Maguire identified two photographs as stills from the video, admitted as exhibits 4 and 5.
Fifth, a robbery was reported on September 10, 2012, at a business called “Uniqlo Services” on Ocean Avenue. Sergeant Maguire obtained the police report and surveillance video. The video showed two African-American male suspects, one taller and thinner than the other. Maguire identified one photograph as a still from the video showing a person who he believеd to be the shorter suspect, admitted as exhibit 6. He was wearing black shoes with white soles, like those worn by the shorter suspect in the Burger King robbery.
Sixth, a robbery was reported on September 11, 2012, at a business called “The Hot Tubs” on Van Ness Avenue. Sergeant Maguire obtained the police report and surveillance video of the incident and went to the scene the day after the robbery. The video showed two African-American male suspects, one taller and thinner than the other. Maguire identified four photographs as stills from the video, admitted as exhibits seven through ten. Exhibits seven and eight showed the shorter suspect wearing a dark-colored beanie cap and black shoes with white soles. Exhibits nine and ten showed the taller suspect, who had “scruffy” facial hair and was wearing a hooded sweatshirt.
Seventh, a robbery was reported on September 14, 2012, at a Subway shop on Polk Street. Sergeant Maguire read the police report and viewed the surveillance video
Sergeant Maguire arrested appellants on September 16, 2012. At 5:54 p.m. on that day, he heard a broadcast reporting a robbery at a restaurant called “Sweet Chinito” on Mission Street. The suspects were described as two African-American men, one taller and one shorter. Maguire thought they might be the perpetrators in the robberies he was investigating.
After hearing the broadcast about the Sweet Chinito robbery, Sergeant Maguire went to the area of 7th Street and Market Street, because the dispatch said the victim‘s cell phones were stolen and stolen cell phones are often sold in that location. He arrived in the general area in an unmarked vehicle about 20 minutes after the broadcast and observed two men cross the street about 12 feet in front of him. He “immediately recognized” them as the suspects in the robberies he had been investigating. Both were African-American, and one was taller and thinner than the other. Maguire noticed the shorter man was wearing black shoes with white soles similar to those he had seеn in several videos, as well as a leather jacket which resembled one worn by the suspect in the San Bruno Cafe robbery video. The shorter man‘s height, weight, build, face, and demeanor also resembled one of the suspects. The taller man was wearing dark pants and boots that resembled clothes worn by a suspect in the videos, and his facial features (including facial hair) and confident manner were similar to a suspect in the videos. Maguire identified Alexander as the shorter man and Farr as the taller man he observed on September 16, 2012.
Sergeant Maguire called for backup, followed appellants for a short distance, and then exited his vehicle and apprehended them at gunpoint. Maguire searched a black bag Farr was carrying and found two cell phones. Maguire asked an officer at the Sweet
Sergeant Maguire identified five photographs of appellants taken on September 16, 2012, admitted into evidence as exhibits 13 through 17.
B. The Trial Court‘s Ruling
Appellants sought an order suppressing all evidence obtained as a result of the warrantless arrest. After argument from counsel, the trial court denied the motion to suppress. The court said it credited Sergeant Maguire‘s testimony that “he immediately recognized [appellants] as the suspects whom he had viewed on multiple times in multiple videotapes of prior and relatively recent robbery incidents.” The court further found that some of the stills from the videos corroborated Maguire‘s testimony. Although the quality of the images varied, the court observed that the photos of the San Bruno Cafe robbery (exhibits one and two) were “fairly recognizable depictions” of Alexander, and the photos from the robbery at The Hot Tubs (exhibits nine and ten) were “pretty well recognizable depictions” of Farr.5 The court concluded Maguire had probable cause to arrest appellants.
C. Admissibility of Sergeant Maguire‘s Testimony About the Robbery Videos
Appellants contend the prosecution below failed to prove the surveillance videos that Sergeant Maguire described actually depicted the robberies he was investigating. More narrowly, they contend the prosecution failed to meet its burden on that point because Maguire‘s testimony connecting the videos to the robberies was based on hearsay. As appellant Alexander puts it, “no person with personal knowledge of any incident testified that the video watched by Maguire accurately depicted it, and no person
In arguing that Sergeant Maguire‘s testimony about the surveillance videos was inadmissible, appellants correctly observe that the hearsay rule was applicable during the hearing on the motion to suppress. (See Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927 [in reference to hearings on motions to suppress, stating ”
Appellants then proceed to argue that Sergeant Maguirе‘s assertions that the surveillance videos he viewed corresponded to the robberies under investigation was based on inadmissible hearsay. Appellants’ contention is misplaced. It is true that Maguire‘s testimony was not based on his personal knowledge. Instead, his belief that the videos depicted the robberies was based on information received from witnesses to the robberies and other officers, based on the videos being associated with the cases in police records, or based on receiving the videos from the victims. However, “[i]t is settled . . . that reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt.” (People v. Boyles, supra, 45 Cal.2d at p. 656, citing Brinegar v. United States (1949) 338 U.S. 160, 171-176.)
More to the point, Sergeant Maguire‘s testimony was not subject to exclusion under the hearsay rule because, even though it was based on (mostly implied) extra-judicial statements, the testimony was not hearsay because it was offered only to show the information he relied on in deciding to arrest appellants. (
Appellants also contend the prosecution failed to demonstrate the surveillance videos that Sergeant Maguire described were authentic within the meaning of
Although the prosecution was required to authenticate the videos Sergeant Maguire described in his testimony, “the proof that is necessary to authenticate a photograph or video recording varies with the nature of the evidence that the photograph or video recording is being offered to prove and with the degree of possibility of error.” (Goldsmith, at p. 267.) Goldsmith further explains, “The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered.” (Ibid.) “A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations.] This foundation may, but need not be, supplied by the person tаking the photograph or by a person who
In Goldsmith, the evidence at issue were photographs generated by a red light traffic camera, “offered as substantive proof of defendant‘s violation.” (Goldsmith, supra, 59 Cal.4th at p. 267.) The authenticity of the photographs was supported in part by a statutory presumption that printed representations are ” ‘presumed to be an accurate representation of the images it purports to represent.’ ” (Id. at p. 268, quoting
In the present case, Sergeant Maguire‘s testimony about the surveillance videos was only admitted for the purpose of establishing the information he relied on in arresting appellants.7 With that purpose in mind, we turn to the prosecution‘s showing of authenticity. Sergeant Maguire testified under oath about surveillance videos of seven robberies. Maguire did not have personal knowledge of the robberies or how the videos were made, but there is little reason to doubt the videos depict the robberies under
Appellants also argue their counsel wеre ineffective in failing to object to Sergeant Maguire‘s testimony under
Appellants have not shown the court erred in admitting the testimony of Sergeant Maguire at the hearing on the motion to suppress.10
D. Sergeant Maguire‘s Testimony Established Probable Cause
Did the infоrmation possessed by Sergeant Maguire support a finding of probable cause to arrest appellants? ” ‘Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.’ [Citation.] ‘[T]he probable cause standard’ . . . ‘is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.’ [Citation.] ’ “[T]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,” ’ and ‘the belief of guilt must be particularized with respect to the person to be searched or seized. . . .’ [Citation.] In determining whether probable cause to make an arrest existed, ‘we examine the events leading up to the arrest, and then decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause. . . .’ ” (People v. Turner (2017) 13 Cal.App.5th 397, 404-405.) To support a determination of probable cause, the information relied upon by the arresting officer must be ” ‘reasonably trustworthy’ ”
As explained previously in the context of the authentication analysis (Part I.C., ante), Sergeant Maguire‘s testimony established the videos were a trustworthy basis upon which to formulate probable cause for arrest. Although his testimony was not detailed, the videos as described had sufficient indicia of reliability and there is little reason to doubt the videos depicted the robberies under investigation. We need not repeat the analysis here.
Appellants also argue Sergeant Maguire could not make a sufficiently reliable identification of them based on his viewings of the surveillance videos. They rely on People v. Walker (2012) 210 Cal.App.4th 1372, in which the court of appeal held that a deputy‘s opinion that the defendant, detained at a public transit station, resembled a suspect was not “objectively reasonable.” (Id. at p. 1387.)11 Walker is distinguishable. There, the only similarities were in the race and age of the defendant and the suspect, because the photographs of the suspect relied upon by the deputy were “of poor quality and offer little objective support for [the deputy‘s] testimony.” (Id. at p. 1386.) In the present case, we agree with the trial court that, comparing the surveillance stills to the photographs taken the day of the arrest, exhibits one and two are reasonably recognizable as Alexander and exhibits nine and ten are reasonably recognizable as Farr. Although the quality of the surveillance video stills is not so good as to leave no doubt, we agree with the trial court that it is reasonable to infer that Maguire‘s ability to recognize appellants was enhanced by his multiple viewings of the videos. Also, the circumstances that Maguire encountered appellants together and that Alexander was wearing the same jacket and shoes he wore in some of the videos substantially enhanced the probable accuracy of the identification. Considered as a totality, the information known to Maguire was
Appellants also contend the trial court, in upholding the warrantless arrest, could not rely on Sergeant Maguire‘s testimony about the Sweet Chinito robbery broadcast. They rely on the “Harvey-Madden rule,”12 pursuant to which, when ” ’ “officers in the field . . . make arrests on the basis of information furnished to them by other officers,” ’ ” then ” ’ “the People must prove that the source of the information is something other than the imagination of an officer who does not become а witness.” ’ ” (People v. Collins, supra, 59 Cal.App.4th at p. 993; see also People v. Brown (2015) 61 Cal.4th 968, 983 (Brown).) We need not address that claim because, like the trial court, we do not rely on the dispatch in finding probable cause for the warrantless arrest. As we have explained, Maguire had probable cause to arrest appellants because he recognized them from the surveillance videos; his testimony about the Sweet Chinito robbery dispatch merely explained why he went to the area of Market and 7th Street the day of the arrest.
Because the surveillance videos viewed by Sergeant Maguire bore indicia of reliability and because those videos provided a sufficient basis for him to recognize appellants, the warrantless arrest of appellants was objectively reasonable under the Fourth Amendment.13
II. The Trial Court Did Not Err in Its Conduct Credits Calculation
For the 1,741 days served in jail before sentencing, appellant Alexander received conduct credit of 261 days, which is 15 percent of the actual period of confinement. (
The Ramos court rejected a similar claim. There, the court construed
Appellant Alexander contends the Ramos court erred, and he discusses in great detail various aspects of the legislative history that he argues show “subdivision (c) of section 2933.1 was intended to combine with subdivision (a) to limit the conduct credit on the entire prison term for a violent felony to 15 percent regardless of the amount of time the defendant happened to serve in county jail before the sentence. It was not intended to crеate a limit on the conduct credit for the time served in county jail that was even harsher than that for the time served in prison.”
We believe the evidence of legislative intent highlighted by appellants is ambiguous as to the interpretation of
Appellants have not proffered a reasonable alternate interpretation of the phrase “the actual period of confinement” (
Appellants have not shown the trial court erred in calculating conduct credits for time they spent in jail custody. Of course, the Legislature is at liberty to amend
III. We Remand for Exercise of Trial Court‘s Newly-Granted Sentencing Discretion
Finally, appellant Alexander contends this matter must be remanded for resentencing so the trial court may exercise its newly-granted discretion to dismiss or strike the five-year consecutive term that was imposed based on his prior serious felony conviction for attempted robbery. (
“On September 30, 2018, the Governor signed [SB 1393] which, effective January 1, 2019, amend[ed] sections 667[ subdivision (a)] and 1385[ subdivision (b)] to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)” (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Under the previous version of the statutes, a trial court was “required to impose a five-year consecutive term for ‘any person convicted of a serious felony who previously has been convicted of a serious felony’ (
Respondent agrees SB 1393 is retroactive, but it argues remand for resentencing would be futile because the trial court “lacks any authority to later unilaterally alter any component of the plea” bargain entered by the parties and approved by the court.17 It relies on the proposition that “a negotiated plea agreement is in the nature of a contract,”
That argument was rejected by the Second District in analogous circumstances in Hurlic, supra, 25 Cal.App.5th 50. (See also Stamps, supra, 34 Cal.App.5th at p. 121, review granted [following Hurlic in SB 1393 context].) Hurlic involved 2017‘s SB 620, which granted trial courts discretion to strike section 12022.53 firearm enhancements. (Hurlic, at p. 54.) That bill, like SB 1393, was deemed retroactive, and Hurlic concluded remand was necessary to allow the trial court to exercise its newly granted discretion, even though the sentence below was based on an agreed-upon sentence. (Hurlic, at pp. 56, 57-59.) Hurlic acknowledged the contractual nature of plea bargains, but observed that, “[u]nless 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.’ ” ’ ” (Id. at p. 57, quoting Doe v. Harris (2013) 57 Cal.4th 64, 66.) Because the defendant‘s plea bargain did not contain language to the contrary, it was deemed to incorporate SB 620 and “thus give defendant the benefit of its provisions without calling into question the validity of the plea.” (Hurlic, at p. 57.) If on remand the trial court were to strike the 20-year firearm enhancement at issue in that case, “resentencing under [SB] 620 still [would] not ‘eviscerate[ ] . . . the plea bargain’ . . . , and thus, the People may not seek to set aside the plea.” (Hurlic, at p. 57.)
In Stamps, supra, 34 Cal.App.5th 117, Division Four of this District followed Hurlic in the context of SB 1393. Citing Hurlic and the California Supreme Court decisions underlying the decision, Stamps rejected the Attorney General‘s argument “that retroactive application of new law in this case would deprive the prosecution of the benefit of its plea bargain.” (Stamps, at p. 122, review granted; see also Doe v. Harris, supra, 57 Cal.4th at pp. 73-74 [“It follows, also as a general rule, that requiring the parties’ compliance with changes in the law made retroactive to them does not violate the
Very recently, in Fox, supra, 34 Cal.App.5th 1124, the majority of a panel in Division One of this District declined to follow Hurlic or Stamps in the SB 620 context. The majority concluded the Legislature did not “intend[] for a trial court to be able to exercise sentencing discretion under [SB] 620 even when a defendant agrees to serve a specific term for a firearm enhancement and does not seek to withdraw the plea.” (Fox, at p. 1137.) Although the decision‘s analysis is thoughtful, we find more persuasive the dissenting justice‘s observation that SB 620 “requires only that the trial court exercise its discretion to decide whether to strike a firearm enhancement, in full view of the circumstances that gave rise to the plea agreement and in accordance with the equities of the situation and the interests of justice.” (Fox, at p. 1140 (dis. opn. of Sanchez, J.).) The Fox dissent also observed that, in enacting SB 620, “the Legislature was grappling with the large-scale impacts of mandatory firearm enhancements on lengthy prison sentences, prison crowding, and incarceration costs.” (Fox, at pp. 1148-1149 (dis. opn. of Sanchez).) SB 1393 was enacted for similar reasons. (See, e.g., Sen. Comm. on Pub. Saf. report on SB 1393, April, 3, 2018 [bill author‘s statement that lack of discretion “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
Respondent does not claim appellant Alexander‘s plea bargain “contain[s] a term incorporating only the law in existence at the time of execution.” (Hurlic, supra, 25 Cal.App.5th at p. 57.) Accordingly, under Stamps and by analogy to Hurlic and the California Supreme Court decisions relied upon therein, appellant Alexander‘s plea bargain is deemed to incorporate SB 1393 and remand is required to give the trial court an opportunity to exercise its newly granted discretion to strike Alexander‘s prior serious felony conviction for sentencing purposes. “In exercising its discretion, the trial court is not precluded from considering whether doing so would be incompatible with the agreement on which defendant‘s plea was based. If the trial court strikes the enhancement, it shall resentence defendant [Alexander]. In selecting an appropriate sentence, the court retains its full sentencing discretion except that it may not impose a term in excess of the negotiated [14] years without providing defendant [Alexander] the opportunity to withdraw his plea. [Citation.] If the trial court does not strike the enhancement, it shall reinstate the sentence.” (Stamps, supra, 34 Cal.App.5th at p. 124, review granted.) If the court decides to resentence Alexander without the five-year enhancement under section 667, subdivision (a), respondent may not seek to set aside the plea. (Hurlic, at p. 57.)
DISPOSITION
The trial court‘s judgment is affirmed as to appellant Farr. As to appellant Alexander, the case is remanded for the trial court to consider whether to strike the five-year enhancement imposed under
SIMONS, J.
I concur.
JONES, P.J.
(A151809, A152247)
NEEDHAM, J., Concurring and Dissenting
I concur with the majority opinion, except to the extent it remands the matter for Alexander to be resentenced pursuant to Senate Bill 1393 (SB 1393). (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 667.) That issue is not properly before us, because Alexander did not obtain a certificate of probable cause.
It is fundamental that an appellant who challenges the validity of his or her plea must first obtain a certificate of probable cause from the trial court. (People v. Panizzon (1996) 13 Cal.4th 68, 76;
Here, Alexander‘s plea was part of an agreement by which the court would impose, and did impose, a specific sentence of 14 years, including five years for his prior conviction of attempted robbery (
The majority states in a footnote that Alexander was not required to obtain a certificate of probable cause, theorizing that his request for relief does not really attack the plea‘s validity. (Maj. opn. ante, at p. 20, fn. 16.) The majority cites People v. Buttram (2003) 30 Cal.4th 773, 782 (Buttram), but Buttram affirms the principle that a certificate is required where, as here, the appellant attacks a specific sentence to which the parties agreed. (Id. at pp. 781-782, 789.) While Buttram further concluded that a certificate of probable cause was not needed to challenge the court‘s exercise of
The majority also cites People v. Stamps (2019) 34 Cal.App.5th 117 (Stamps), involving SB 1393, and People v. Hurlic (2018) 25 Cal.App.5th 50, 54-59 (Hurlic), a case involving Senate Bill 620 (SB 620) on which Stamps heavily relied. Both Stamps and Hurlic acknowledged that a certificate of probable cause is required when an appellant challenges a specific negotiated sentence, but nonetheless concluded that this mandate can be ignored when the challenge is based on a retroactive change in the law. (Stamps, at p. 121; Hurlic, at pp. 55-57.)
The retroactivity analysis of Stamps and Hurlic does nоt persuade me. It implies that, even though a certificate of probable cause is mandated for attacks on plea bargains reached after the effective date of SB 1393 (or SB 620), no certificate would be needed for attacks against plea bargains reached before the law was even in existence. This would be a curious result, which Stamps and Hurlic do not adequately explain.
In my view, Stamps and Hurlic overstate the consequence of retroactivity. Although a new statute may apply retroactively to cases not yet final, that does not mean that every case not yet final falls within the scope of the new statute. Here, SB 1393 applies retroactively, but there is no indication that it was intended to govern cases in which, as here, the defendant had agreed to a conditional plea that mandated a specific sentence without judicial discretion to change it. (See People v. Segura (2008) 44 Cal.4th 921, 923 [trial court may not change the sentence stipulated in a conditional plea without the consent of both parties].) Moreover, even if a law applies retroactively, it does not follow that a person using that law to challenge a stipulated sentence is immune from having to obtain a certificate of probable cause.
Stamps‘s and Hurlic‘s primary justification for their retroactivity analysis borrows from the idea that new laws are sometimes incorporated into old plea agreements. (Stamps, supra, 34 Cal.App.5th at p. 121; Hurlic, supra, 25 Cal.App.5th at p. 57.) As the
However, the cases on which Hurlic relied are inapposite. Besides the fact that neither of them addressed the certificate of probable cause requirement, the plea agreements in those cases were deemed to incorporate substantive changes in the law, which the Legislature explicitly made applicable to the defendants. (Doe, supra, 57 Cal.4th at p. 66; Harris, supra, 1 Cal.5th at p. 991.) Here, SB 1393 merely allows a court to exercise its discretion tо strike or dismiss a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) SB 1393 does not require all prior serious felony convictions to be stricken for sentencing; nor does it expressly make its provisions applicable to persons convicted pursuant to a plea bargain that was conditioned on the court entering a specified sentence, and only that sentence.
This distinction makes a difference, as recently explained in two cases from this appellate district that rejected Hurlic‘s and Stamps‘s analysis. (People v. Galindo (2019) 35 Cal.App.5th 658 (Galindo); People v. Fox (2019) 34 Cal.App.5th 1124 (Fox).) As Fox concluded, “the general rule that plea agreements incorporate subsequent changes in the law pertains only to changes that the Legislature or electorate ’ “intended to apply to” ’ the parties to plea agreements,” and there is no indication that SB 620 was intended to apply to plea bargains in which the defendant and the prosecution stipulated that a
As another reason for eschewing the certificate of probable cause requirement, Hurlic asserted that the intent behind the requirement is to encourage plea agreements and weed out frivolous and vexatious appeals, and a defendant‘s incentive to plead is reduced if the defendant must seek a certificate of probable cause to take advantage of a new law. (Hurlic, supra, 25 Cal.App.5th at pp. 57-58.) I find it difficult to believe that a defendant, content with serving a specified number of years to avoid trial and the potential for additional convictions and a longer sentence, would shun the deal merely because, if in the future some change in the law would shave even more years off his sentence, he would have to file a piece of paper stating why the new law applies (which he would have to establish eventually anyway). (See Galindo, supra, 35 Cal.App.5th at p. 672.) And if, as Galindo concludes, SB 1393 was not intended to apply to convictions obtained by conditional plea (id. at p. 671), the gatekeeping function of
Lastly, Hurlic asserted that the more specific and newer legislation (in this case, SB 1393) should prevail over the more general and older
The majority‘s footnote in this case also expresses its agreement with the dissent in Fox, to the effect that Alexander is merely trying to ” ‘raise issues reserved by the plea agreement.’ ” (Maj. opn. ante, at p. 20, fn. 16, quoting Fox, supra, at p. 1144 (Sanchez, J., dissenting).) But that proposition is incorrect, since Alexander‘s conditiоnal plea agreement did not reserve discretion to the trial court to change the length of his sentence. Indeed, it is the whole point of a conditional plea, as well as the expectation of the parties who negotiate them, that the court would not have such discretion. In my view, before we jump to the conclusion that the Legislature intended to flip the long-standing law and its real-world application on its head, wisdom dictates that we require something more from the legislative language than silence. I therefore agree not with the dissent in Fox, but with the views of the justices who formed the majority in Fox, as echoed by the unanimous panel in Galindo.18
Alexander‘s insistence that the court should be allowed to change his sentence under SB 1393 attacks the validity of his plea, and his argument cannot be heard without a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
NEEDHAM, J.
(A151809, A152247)
Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant Bryan Alexander.
Gail E. Chesney, under appointment by the Court of Appeal, for Defendant and Appellant Ray A. Farr.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney Gеneral, Seth K. Schalit and Lisa Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.