Filed 1/17/20 P. v. Burts CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFERY TODD BURTS,

Defendant and Appellant.

F077149

(Super. Ct. No. F17906674)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge.

C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Effective January 1, 2019, Senate Bill No. 1393 amended Penal Code sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393).) Defendant Jeffery Todd Burts, who was convicted by plea and sentenced to a stipulated term that included the then-mandatory five-year enhancement under section 667, former subdivision (a)(1), requests remand to allow the trial court to exercise its discretion to strike the prior serious felony enhancement under Senate Bill No. 1393.

The People concede Senate Bill No. 1393 applies retroactively to this case, but contend remand for resentencing is unnecessary because by accepting the plea agreement and imposing the stipulated sentence, the trial court gave clear indication that it would not have exercised its discretion to strike the enhancement.

Under California law, the parties’ plea bargain is not insulated from retroactive changes in the law. (§ 1016.8; Doe v. Harris (2013) 57 Cal.4th 64, 73–74 (Doe); accord, Harris v. Superior Court (2016) 1 Cal.5th 984, 990–991 (Harris).) In light of the change in the law that occurred after defendant was sentenced, we reject the People’s contention that remand under Senate Bill No. 1393 is unnecessary and, in accordance with this court’s recent decision in People v. Ellis (Dec. 24, 2019, F076421) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 1296] (Ellis), we remand this matter to allow defendant to seek relief under Senate Bill No. 1393. The judgment is otherwise affirmed.

PROCEDURAL HISTORY

The charges in this case arose from an incident of domestic violence followed by defendant’s subsequent violation of a restraining order five months later. Defendant was charged by amended information with the following five felonies: infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)) (count 1), making criminal threats (§ 422) (count 2), dissuading a witness (§ 136.1, subd. (b)(2)) (count 3), contempt of court (§ 166, subd. (c)(1)) (count 4), and resisting a peace officer (§ 148, subd. (a)(1)) (count 5). In addition, the amended information alleged a prior serious felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), a prior serious felony conviction enhancement (§ 667, subd. (a)(1)), and two prior prison term enhancements (§ 667.5, subd. (b)).

Pursuant to a negotiated plea bargain, defendant pled no contest to making criminal threats (count 2), and he admitted the prior strike conviction and the prior serious felony conviction enhancement. The remaining counts and the prior prison term enhancement allegations were dismissed, and the trial court sentenced defendant to the middle term of two years, doubled for the prior strike conviction, plus an additional five years for the prior serious felony conviction enhancement, for a total determinate term of nine years.

DISCUSSION

I. Certificate of Probable Cause Requirement

A. Background

Before turning to the issue on appeal, we first address a threshold matter not raised by the parties. “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 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.’ (Italics added.) 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; accord, People v. Panizzon (1996) 13 Cal.4th 68, 75–76.) Thus, when a defendant pleads guilty or no contest, as here, absent a certificate of probable cause, “appellate review is [generally] limited to issues that concern the ‘jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.’” (In re Chavez (2003) 30 Cal.4th 643, 649, fn. omitted; accord, People v. Maultsby, supra, at pp. 302–303; see People v. Shelton (2006) 37 Cal.4th 759, 766.)

There is presently a split of authority regarding whether a defendant who pled guilty or no contest under a plea agreement that included a stipulated sentence may proceed with his or her appeal of an issue arising from a retroactive change in the law in the absence of a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).) In People v. Hurlic (2018) 25 Cal.App.5th 50, 57 (Hurlic), People v. Baldivia (2018) 28 Cal.App.5th 1071, 1079 (Baldivia), and Stamps, supra, 34 Cal.App.5th at page 121, review granted, the Courts of Appeal concluded that because plea agreements are not insulated from retroactive changes in the law under the general rule articulated by the California Supreme Court in Doe, supra, 57 Cal.4th at pages 73–74 and Harris, supra, 1 Cal.5th at pages 990–991, a defendant’s request for relief based on a retroactive change in the law is not an attack on the validity of the plea and, therefore, a certificate of probable cause is not required.

Collectively, the Courts of Appeal in Kelly, supra, 32 Cal.App.5th at page 1018, review granted; People v. Fox (2019) 34 Cal.App.5th 1124, 1139, review granted July 31, 2019, No. S256298 (Fox); People v. Galindo (2019) 35 Cal.App.5th 658, 673, review granted August 28, 2019, No. S256568 (Galindo); and People v. Williams (2019) 37 Cal.App.5th 602, 606, review granted September 25, 2019, No. S257538 (Williams), stand for the proposition that defendants who pled guilty or no contest pursuant to a plea agreement that included a stipulated sentence must still obtain a certificate of probable cause to seek relief on direct appeal under Senate Bill No. 1393 or Senate Bill No. 620.

B. Doe/Harris Rule Applies

We agree with the Hurlic line of cases. As addressed in part II. of the Discussion, there is no dispute that Senate Bill No. 1393 applies retroactively to this case. Given that defendant was convicted by plea, we must view his request to avail himself of the ameliorative change in the law through the lens of Doe and Harris.

In Doe, the California Supreme Court explained, “[T]he 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, supra, 57 Cal.4th at pp. 73–74; accord, Harris, supra, 1 Cal.5th at pp. 990–991.)

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 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.”

Despite agreeing that Senate Bills Nos. 620 and 1393 apply retroactively to judgments not yet final on appeal, the Fox line of cases distinguishes Doe and Harris, and reasons that the Legislature did not intend for those changes in the law, which are discretionary in nature, to apply to plea bargains resulting in stipulated sentences. (Fox, supra, 34 Cal.App.5th at pp. 1136–1137, review granted; accord, Galindo, supra, 35 Cal.App.5th at pp. 664 & 670–671, review granted; Williams, supra, 37 Cal.App.5th at pp. 604–605, review granted; see People v. Alexander (2019) 36 Cal.App.5th 827, 844–846 (conc. & dis. opn. of Needham, J.), review granted Oct. 16, 2019, No. S257190.) We disagree.

The text of Senate Bill No. 1393 contains no such limitation. Nothing in the plain language of Senate Bill No. 1393 or the legislative history suggests the change in the law applies to only certain convictions.

In Ellis, we stated, “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 [In re] Estrada [(1965) 63 Cal.2d 740, 745 (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, review granted; see People v. Alexander, supra, 36 Cal.App.5th at p. 845 (dis. opn. of Needham, J.), review granted.)” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p. *26].)

“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, … 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.” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at pp. *26–27].) “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.” (Id. at p. ___ [2019 Cal.App. Lexis 1296 at p. *27], citing § 1018.6, subds. (a)(1), (b).)

C. Conclusion

When the parties in this case reached the plea agreement that was approved by the trial court, 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.” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p.*27].) As discussed in Ellis, “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 to Senate Bill No. 1393 compels the conclusion that [the] defendant is entitled to seek the benefit of change in the law.” (Id. at pp. ___ [2019 Cal.App. Lexis at pp. *27–28].)

“[T]he 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. [¶] 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.” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p *28].)

In the latter instance, the trial court’s decision is not without attendant consequences, as “‘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.’” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p. *28], quoting People v. Segura (2008) 44 Cal.4th 921, 931–932; accord, K.R. v. Superior Court (2017) 3 Cal.5th 295, 303–304; People v. Martin (2010) 51 Cal.4th 75, 79; see §§ 1018, 1192.5.) “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, at pp. ___ [2019 Cal.App. Lexis 1296 at pp. *29–30.)

In sum, “while [the] defendant 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 agreement is deemed to have incorporated and contemplated. (Doe, supra, 57 Cal.4th at pp. 73–74.) Under these circumstances, we agree with the Baldivia court that the first ground articulated in Hurlic—application of the rule in Doe and Harris—is dispositive (Baldivia, supra, 28 Cal.App.5th at p. 1077), and conclude that [the] defendant was not required to obtain a certificate of probable cause to request relief pursuant to Senate Bill No. 1393 (Hurlic, supra, 25 Cal.App.5th at pp. 55–57; accord, Baldivia, supra, at pp. 1077–1079; Stamps, supra, 34 Cal.App.5th at pp. 122–123, review granted).” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p. *30].)

II. Senate Bill No. 1393 is Retroactive

Turning to the issue raised by the parties, “we 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.’ (Estrada, supra, 63 Cal.2d at p. 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]; People v. Garcia (2018) 28 Cal.App.5th 961, 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.

III. Remand is Appropriate

“‘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; People v. Garcia, supra, 28 Cal.App.5th at p. 973; 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 No. 620 unnecessary where trial court resentenced the defendant on remand in 2017, & court & parties focused on determining the maximum lawful sentence with goal of coming as close as possible to 51-year sentence originally imposed]; People v. Jones (2019) 32 Cal.App.5th 267, 274 [remand unnecessary where record clear trial court would not exercise discretion to strike enhancement under Sen. Bill No. 1393]; People v. McVey (2018) 24 Cal.App.5th 405, 419 [record clear trial court would not exercise discretion to strike enhancement under Sen. Bill No. 620].)

The parties agreed to a sentence of nine years, which the trial court 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, indicating consequences attendant to defendant’s request for the court to exercise its discretion under Senate Bill No. 1393. (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p. *32]; see § 1018; People v. Martin, supra, 51 Cal.4th at pp. 79–81; People v. Segura, supra, 44 Cal.4th at pp. 930–932.) “However, the record does not clearly demonstrate that remand would be futile (cf. People v. Wilson, supra, 42 Cal.App.5th at p. 415; People v. Allison, supra, 39 Cal.App.5th at pp. 705–706; People v. Jones, supra, 32 Cal.App.5th at p. 274; 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).” (Ellis, supra, at p. ___ [2019 Cal.App. Lexis 1296 at p. *32].) As set forth in Ellis, “[u]nder 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. (§ 1016.8, subd. (b), eff. Jan. 1, 2020; Doe, supra, at pp. 73–74; Harris, supra, at pp. 990–991.) Therefore, [the] defendant is entitled to a limited remand to allow him the opportunity to request relief under Senate Bill No. 1393.” (Id. at p. ___ [2019 Cal.App. Lexis 1296 at pp. *32–33].)

DISPOSITION

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.