THE PEOPLE, Plaintiff and Respondent, v. CHARLES PATRICK ELLIS, Defendant and Appellant.
F076421
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 12/24/19
CERTIFIED FOR PUBLICATION; (Super. Ct. No. BF166031A)
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Effective January 1, 2019, Senate Bill No. 1393 amended
As discussed herein, we conclude that because defendant entered his plea, was sentenced and filed a notice of appeal approximately one year before Senate Bill No. 1393 was enacted, his failure to obtain a certificate of
PROCEDURAL HISTORY
Defendant was charged with evading a peace officer (
Pursuant
DISCUSSION
I. Appellate Jurisdiction in Absence of Certificate of Probable Cause
A. Background
1. Plea Agreements in General
With respect to plea bargains, “the process of plea negotiation ‘contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty [or no contest] in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (
“Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted according to general contract principles. [Citations.] Acceptance of the agreement binds the court and the parties to the agreement. [Citations.] ‘“When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.“‘” (Segura, supra, 44 Cal.4th at pp. 930-931; accord, Martin, supra, 51 Cal.4th at p. 79.) However, “the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. [Citation.] If the court does not believe the agreed-upon disposition is fair, the court ‘need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.’ [Citations.] [¶] Although a plea agreement does not divest the court of its inherent sentencing discretion, ‘a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.] “A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.” [Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.” [Citation.]‘” (Segura, supra, at p. 931; accord, Martin, supra, at p. 79.)
However, “the general rule in California is that a plea agreement is ‘“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. ...“’ [Citation.] 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 terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, 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), italics added; accord, Harris v. Superior Court (2016) 1 Cal.5th 984, 990-991 (Harris).)
Although this case does not involve a claim that defendant waived his right to appeal, the Legislature recently expressly relied, in part, on the rule in Doe
2. Certificate of Probable Cause
“The right to appeal is statutory only, and a party may not appeal a trial court‘s judgment, order or ruling unless such is expressly made appealable by statute.” (People v. Loper (2015) 60 Cal.4th 1155, 1159; accord, People v. Arriaga (2014) 58 Cal.4th 950, 958; People v. Totari (2002) 28 Cal.4th 876, 881.) “In general, [however,] a defendant may appeal from a final judgment of conviction, unless otherwise limited by
B. Summary of Parties’ Positions on Appeal
Pursuant to the parties’ negotiated plea bargain, which did not include a waiver of the right to appeal, defendant pled no contest to count 1 and count
Approximately one year later and while this appeal was pending, Senate Bill No. 1393 was enacted. As previously stated, effective January 1, 2019, Senate Bill No. 1393 amended
The People concede that Senate Bill No. 1393 applies retroactively to cases not yet final on appeal, but they contend that defendant‘s appeal must be dismissed because he failed to obtain a certificate of probable cause (
Defendant did not file a reply brief.
C. Summary of Split of Authority Concerning Certificate of Probable Cause Requirement
1. Certificate of Probable Cause Not Required
a) Hurlic
In Hurlic, the defendant pled no contest to attempted murder and admitted a firearm enhancement allegation under
On review, the Second District Court of Appeal, Division Two, considered whether the general rule requiring a certificate of probable cause to challenge a sentence imposed pursuant to a plea bargain applies when the challenge arises from a retroactive change in the law granting the trial court discretion to strike a firearm enhancement that was, at the time of the plea and sentencing, mandatory. (Hurlic, supra, 25 Cal.App.5th at p. 53.) The court concluded that a certificate of probable cause was not required and, in the unpublished section of the opinion, that remand for resentencing under Senate Bill No. 620 was appropriate. (Hurlic, supra, at p. 59.)
In reaching this conclusion, the Hurlic court recognized the line of authority requiring a certificate of probable cause as a condition precedent to appellate review where the parties had agreed to the specific prison sentence imposed and the line of authority regarding the retroactivity of new ameliorative criminal statutes. (Hurlic, supra, 25 Cal.App.5th at pp. 55-56.) The court reconciled the two lines by concluding that, in the narrow circumstances presented by the case, the line of authority regarding retroactivity of ameliorative changes in the law trumped the line of authority requiring a certificate of probable cause. (Id. at p. 57.) This conclusion was founded on three rationales. (Id. at pp. 57-58.)
First, the court recognized that “plea agreements are, at bottom, ‘a form of contract,’ and their terms, like the terms of any contract, are to be enforced. ([People v.] Shelton, supra, 37 Cal.4th at p. 767; cf. Segura, supra, 44 Cal.4th at pp. 931-932 [court must enforce terms of plea and may not modify them just because one party unilaterally so requests].) Unless a plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made, however, ‘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
Second, the court stated, “[D]ispensing with the certificate of probable cause requirement in the circumstances present here better implements the intent behind that requirement. Although the requirement is to be ‘applied in a strict manner’ (People v. Mendez (1999) 19 Cal.4th 1084, 1098), we cannot ignore its underlying purposes, which are: (1) to facilitate and encourage plea agreements, which are ‘“an accepted and ‘integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.’ [Citations.]“‘” (Harris ... , supra, 1 Cal.5th at p. 992; see Segura, supra, 44 Cal.4th at p. 929; Panizzon, supra, 13 Cal.4th at pp. 79-80); and, as noted above, (2) to ‘weed out frivolous or vexatious appeals’ (Panizzon, at p. 75). If, as the People urge, a defendant who enters a plea of guilty or no contest must go through the additional step of seeking and obtaining a certificate of probable cause to avail himself or herself of the advantage of ameliorative laws like Senate Bill No. 620 (2017-2018 Reg. Sess.) that are otherwise indisputably applicable to him or her, the incentive to enter a plea—or, at a minimum, the incentive to do so expeditiously if legislation or voter initiative along these lines is being contemplated—is reduced. And where, as here, the defendant‘s entitlement to a new law‘s retroactive application is undisputed, an appeal seeking such application is neither ‘frivolous’ nor ‘vexatious,’ thereby obviating any need for
Finally, the court explained, “[T]he rules of statutory construction favor application of Senate Bill No. 620 (2017-2018 Reg. Sess.) over
b. Baldivia
Several months later, the Sixth District Court of Appeal considered the Hurlic decision in Baldivia, a case involving a defendant who, prior to the passage of Proposition 57 and the enactment of Senate Bill No. 620, pled no contest in criminal court to certain offenses committed when he was a juvenile and admitted certain enhancements, including a firearm enhancement under
Following proceedings that are unnecessary to summarize here, the Court of Appeal requested, pre-Hurlic, supplemental briefing on the issue of whether the defendant could raise Proposition 57 and Senate Bill No. 620 issues in the absence of a certificate of probable cause. (Baldivia, supra, 28 Cal.App.5th at p. 1076Baldivia, supra, at p. 1076.)
Between the People‘s supplemental response brief and the defendant‘s supplemental reply brief, the decision in Hurlic was issued. (Baldivia, supra, 28 Cal.App.5th at pp. 1076-1077Baldivia discussed the California Supreme Court‘s decisions in Harris and Doe (Baldivia, supra, at pp. 1077-1078), and concluded that the first rationale articulated in Hurlic was dispositive of the matter (Baldivia, supra, at pp. 1076-1077). The court stated, “If the electorate or the Legislature expressly or implicitly contemplated that a change in the law related to the consequences of criminal offenses would apply retroactively to all nonfinal cases, [as the electorate did with Proposition 57 and the Legislature did with Senate Bill No. 620,] those changes logically must apply to preexisting plea agreements, since most criminal cases are resolved by plea agreements. It follows that [the] defendant‘s appellate contentions were not an attack on the validity of his plea and did not require a certificate of probable cause.” (Id. at p. 1079.) The court remanded the matter for a transfer hearing under Proposition 57 and, if necessary, resentencing under Senate Bill No. 620. (Baldivia, supra, at p. 1079.)
c. Stamps
Thereafter, in Stamps, the First District Court of Appeal, Division Four, followed the reasoning of Hurlic. (Stamps, supra, 34 Cal.App.5th at p. 121, review granted.) The parties in Stamps entered into a plea agreement that included a stipulated sentence of nine years, one component of which was the then-mandatory five-year prior serious felony conviction enhancement, and a general waiver of the right to appeal. (Id. at pp. 119 & 120, fn. 3.) The trial court denied the defendant‘s request for a certificate of probable cause and, approximately seven months later, Senate Bill No. 1393 was passed. (Stamps, supra, at pp. 119-120.)
The court concluded that as with Senate Bill No. 620 in Hurlic, because Senate Bill No. 1393 “was not on the books or anticipated when [the] defendant entered his plea agreement, ... his present appeal is not a challenge to the validity of the plea itself.” (Stamps, supra, 34 Cal.App.5th at p. 122, review granted.) The court further concluded that “[b]ecause the Senate Bill No. 1393 amendment ... was intended to apply retroactively, [the] defendant is entitled to seek relief under the new law” (id. at p. 123), and “[t]he court‘s acceptance of the negotiated sentence ... does not clearly establish that the court would not have exercised discretion to strike the enhancement if it had that discretion” (id. at p. 124). The court cautioned, however, that “[i]n 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.” (Ibid.)
2. Certificate of Probable Cause Required
a. Kelly
Following the decisions in Hurlic and Baldivia, a split of authority developed with the issuance of the decision in Kelly, supra, 32 Cal.App.5th 1013, review granted. Approximately five months before the enactment of Senate Bill No. 1393, the defendant in Kelly was sentenced to a stipulated term that included a five-year prior serious felony conviction enhancement. The Second District Court of Appeal, Division 6, relying on Panizzon,
b. Fox
Subsequently, in People v. Fox, the First District Court of Appeal, Division One, agreed with Kelly that a certificate of probable cause was required to request relief under Senate Bill No. 620, although it set forth a different analysis and questioned Kelly‘s reliance on the fact that in Hurlic, the defendant specified on the appeal form he was seeking relief under Senate Bill No. 620. (People v. Fox (2019) 34 Cal.App.5th 1124, 1133 1139 (Fox), review granted July 31, 2019, No. S256298.) The defendant in Fox entered his plea after the passage of Senate Bill No. 620, but was sentenced before it went into effect, and the record did not indicate he waived his appeal rights. (Fox, supra, at pp. 1127-1128.)
Fox distinguished Doe and Harris on the grounds that the general rule articulated therein regarding plea bargains’ lack of insulation from retroactive changes in the law did not apply. (Fox, supra, 34 Cal.App.5th at pp. 1135-1136, review granted.) The court pointed out that one, unlike in Hurlic and Baldivia, the relevant change in the law was already part of the legal landscape when the defendant entered his plea and was sentenced: the defendant had actual knowledge of Senate Bill No. 620 at the time of his sentencing, “his trial counsel‘s comments at the sentencing hearing reveal that in agreeing to a 10-year term for the firearm enhancement the parties understood that [he] would not have the benefit of the new law once it went into effect,” and he could have, at the very least, filed a timely request for a certificate of probable cause as to Senate Bill No. 620. (Fox, supra, at p. 1135 & fn. 5.)
Two, the court recognized that “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, a crucial limitation.” (Fox, supra, 34 Cal.App.5th at p. 1135, review
c. Galindo
The decision in Fox was followed by a decision from a different panel of the First District Court of Appeal, Division One. The panel in People v. Galindo agreed with Fox and extended its application to a case in which the defendant, who did not waive his appeal rights, was sentenced some five months before Senate Bill No. 620 was passed and signed into legislation. (People v. Galindo (2019) 35 Cal.App.5th 658, 666 (Galindo), review granted Aug. 28, 2019, No. S256568.) The court reasoned, “When the parties agree to a specific sentence, a defendant seeking to reduce that sentence is necessarily challenging the validity of the plea itself. (Panizzon, supra, 13 Cal.4th at pp. 73, 79; [People v.] Johnson [(2009)] 47 Cal.4th [668,] 678-679.) Thus, consistent with our obligation to strictly apply the certificate of probable cause requirement as mandated by our Supreme Court ([People v.] Mendez, supra, 19 Cal.4th at p. 1098), we conclude that where the prosecution and defendant have negotiated a specific sentence, a certificate of probable cause is a necessary predicate to an appeal seeking a remand for resentencing under Senate Bill 1393.” (Id. at p. 670.)
Regarding Doe and Harris, the court opined, “[T]he general legal principle that changes in the law are deemed incorporated into a plea bargain does not apply here, because the change in the law created by Senate Bill 1393 (allowing the court to exercise its sentencing discretion) does not affect defendant‘s plea, which stated a specific, agreed-upon sentence that had already been accepted and imposed by the trial court, not a sentence which
d. Williams
Fox and Galindo were followed by People v. Williams (2019) 37 Cal.App.5th 602 (Williams), review granted Sept. 25, 2019, No. S257538. Like the defendant in Galindo, the defendant in Williams was sentenced some five months before the relevant change in the law—Senate Bill No. 1393—was passed by the Legislature and approved by the Governor. (Williams, supra, at p. 604.) The Second District Court of Appeal, Division Eight, found that Senate Bill No. 1393 applied retroactively to the defendant, but stated that “[t]here [was] no sign the Legislature meant Senate Bill 1393 to apply to cases with stipulated and negotiated plea deals” and concluded that “the Legislature did not want Senate Bill 1393 to alter existing sentences based on a negotiated plea deal and a stipulated sentence.” (Williams, supra, at p. 605.) The court held that because the defendant was “necessarily challenging the validity of the plea itself,” he was required to obtain a certificate of probable cause. (Id. at p. 606.) The court acknowledged that, as in Galindo, the defendant was prevented from obtaining a certificate of probable cause by virtue of the timing of the change in the law, but that nothing prevented him from seeking relief through a petition for writ of habeas corpus. (Williams, supra, at p. 605.)
1. 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.) The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, ‘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.
2. Rule in Doe and Harris Applies
We next consider the plea agreement in this case and the effect of the ameliorative change in the law under Senate Bill No. 1393. As previously stated, the general rule is that the existence of a plea agreement does not insulate the parties “from changes in the law that the Legislature has intended to apply to them.” (Doe, supra, 57 Cal.4th at p. 66.) Despite agreeing that Senate Bills Nos. 620 and 1393 apply retroactively to judgments not yet final on appeal, the Fox line of cases reasons that the Legislature did not intend for
The plain language of Senate Bill No. 1393 contains no such limitation, and the authors of the bill 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.
As the Court of Appeal pointed out in Baldivia, supra, 28 Cal.App.5th at page 1077, most cases are resolved by plea bargain and we are unpersuaded by the proposition advanced in Fox, Galindo and Williams that those who pled guilty or no contest in exchange for a stipulated sentence are categorically excluded from seeking relief under Senate Bill No. 620 or Senate Bill No. 1393, despite the absence of any dispute that under the rule in Estrada, Senate Bill No. 620 and Senate Bill No. 1393 apply retroactively to all cases in which judgment is not yet final on appeal. (Fox, supra, 34 Cal.App.5th at pp. 1135-1136, review granted; accord, Galindo, supra, 35 Cal.App.5th at pp. 671-672, review granted; Williams, supra, 37 Cal.App.5th at p. 605,
Although the changes in the law underlying the appeals in Doe and Harris are distinguishable in some respects from the change in the law at issue here, as detailed in footnote 9, ante, neither Doe nor Harris speaks to any limitation of the general rule that may be reasonably interpreted as excluding its application here, where the Estrada rule applies and therefore, the retroactive amendments are to be extended as broadly as possible. Notably, the Legislature codified the holding in Doe when it recently acted to make 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. (
3. Conclusion
At the point in time the parties arrived at their plea agreement, and the trial court exercised its discretion to approve that agreement, imposition of the five-year prior serious felony conviction enhancement was mandatory. The state of the law then in effect necessarily informed the parties’ negotiations, just as it informed the court‘s subsequent consideration and approval of the agreed upon plea bargain. We agree that Senate Bill No. 1393 does not entitle defendants who negotiated stipulated sentences “to whittle down the sentence ‘but otherwise leave the plea bargain intact‘” (Kelly, supra, 32 Cal.App.5th at p. 1018, review granted, quoting People v. Collins (1978) 21 Cal.3d 208, 215; accord, Fox, supra, 34 Cal.App.5th at p. 1138, review granted; Galindo, supra, 35 Cal.App.5th at p. 673, review granted), but we part company with Fox and other analogous cases because, in our view, application of the Estrada and Doe/Harris rules
The terms of a plea bargain are unique to the case in which the bargain was reached and, therefore, we do not endeavor to identify every conceivable consequence that might flow from a request for relief under Senate Bill No. 1393. However, unlike the mandatory changes in the law at issue in Doe and Harris, 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.
(
In other cases, the trial court might conclude, upon the defendant‘s request, that it is in the interest of justice to strike the enhancement. In such cases, it bears repeating that “in the context of a negotiated plea the trial court may approve or reject the parties’ agreement, but the court may not attempt to secure such a plea by stepping into the role of the prosecutor, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved.” (Segura, supra, 44 Cal.4th at pp. 931-932, italics added; accord, K.R. v. Superior Court (2017) 3 Cal.5th 295, 303-304; Martin, supra, 51 Cal.4th at p. 79.) “Yet, courts have broad discretion to withdraw their approval of negotiated pleas. [Citation.] ‘“Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case [citation], or where, after further consideration, the court concludes that the bargain is not in the best interests of society.“’ [Citation.] However, 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. [Citation.] 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
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.
II. Futility of Remand
The People contend that even if we follow Hurlic, remand is unwarranted because the trial court accepted the plea bargain and sentenced defendant to the stipulated sentence. Again, we disagree.
“‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant‘s record.’ [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.‘” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Johnson (2019) 32 Cal.App.5th 26, 69; Garcia, supra, 28 Cal.App.5th at p. 973, fn. 3; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428; cf. People v. Wilson (2019) 42 Cal.App.5th 408, 415 [no entitlement to remand where the defendant, facing multiple life terms & additional decades in prison, accepted offer of 17 years in prison after the prosecutor was able to better the pre-preliminary hearing offer of 21 years, where such step was procedurally unusual & required consultation with the victim, investigating officer & two people within the prosecutor‘s office]; People v. Allison (2019) 39 Cal.App.5th 688, 705-706 [remand under Sen. Bill
The parties agreed to a sentence of eight years four months, which the trial court approved and imposed. We agree that if the court were to strike or dismiss the enhancement, or stay the sentence on the enhancement, defendant‘s sentence would be reduced significantly and, therefore, as set forth previously, there are consequences attendant to defendant‘s request for the court to exercise its discretion under Senate Bill No. 1393. (See
People v. McVey, supra, 24 Cal.App.5th at p. 419), and the parties’ plea bargain is not insulated from the changes in the law effected by Senate Bill No. 1393 (Doe, supra, 57 Cal.4th at pp. 73-74; Harris, supra, 1 Cal.5th at pp. 990-991). Under the circumstances presented here, if we were to decline to remand this matter based on our view of the likelihood or unlikelihood of the trial court exercising its discretion to strike the enhancement, we would be effectively insulating the agreement from retroactive changes in the law, in contravention of the law. (
DISPOSITION
Consistent with this opinion, this matter is remanded for the limited purpose of allowing defendant an opportunity to request relief under Senate Bill No. 1393. The judgment is otherwise affirmed.
MEEHAN, J.
WE CONCUR:
FRANSON, Acting P.J.
PEÑA, J.
Notes
In Harris, the change in the law at issue was effected by Proposition 47, which by its express terms applies to “someone ‘serving a sentence for a conviction, whether by trial or plea,’ of one of the felonies that Proposition 47 reduced to a misdemeanor.” (Harris, supra, 1 Cal.5th at p. 991, quoting