Filed 12/24/19




                          CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT



 THE PEOPLE,
                                                                  F076421
         Plaintiff and Respondent,
                                                        (Super. Ct. No. BF166031A)
                 v.

 CHARLES PATRICK ELLIS,                                         OPINION
         Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
        Gregory L. Cannon, 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, 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 Penal Code
sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted
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).) This criminal
appeal requires us to determine whether defendant Charles Patrick Ellis, 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), may proceed with
this appeal seeking relief under Senate Bill No. 1393 given his failure to obtain a
certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).)2
       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 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).) We also reject the People’s alternative
contention that remand under Senate Bill No. 1393 would be an exercise in futility, and
we remand this matter to allow defendant to seek relief under Senate Bill No. 1393.
(People v. Garcia (2018) 28 Cal.App.5th 961, 973, fn. 3 (Garcia).) The judgment is
otherwise affirmed.




1      Further statutory references are to the Penal Code unless otherwise stated.
2       As discussed herein, Courts of Appeal are split on this issue, which is pending review
before the California Supreme Court. (E.g., People v. Kelly (2019) 32 Cal.App.5th 1013 (Kelly),
review granted June 12, 2019, No. S255145; People v. Stamps (2019) 34 Cal.App.5th 117, 121
(Stamps), review granted June 12, 2019, No. S255843.)


                                               2.
                                 PROCEDURAL HISTORY
       Defendant 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).3 In addition, 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)).4, 5
       Pursuant to a negotiated plea bargain, defendant, who represented himself after
executing a waiver under Faretta v. California (1975) 422 U.S. 806, 834–836, pled no



3        Based on the preliminary hearing transcript, the charges in this case arose after police
saw defendant, who was driving a vehicle, hand something off to someone and drive away at a
high rate of speed. After officers pulled defendant’s vehicle over, defendant and his passenger
provided false names. Defendant then drove off. Pursuing officers observed something white
thrown out the window. Defendant subsequently crashed the vehicle, and he and his passenger
took off on foot. Both were apprehended thereafter, and officers located 100 grams of
methamphetamine, two scales and a pellet gun that were thrown from the vehicle. As the
underlying facts are not relevant to the issues raised on appeal, we do not summarize them
further.
4       Effective January 1, 2020, Assembly Bill No. 991 amended sections 667 and 1170.12 to
effect technical corrections. (Stat. 2019, ch. 497, §§ 195, 204.)
5       Section 667.5, subdivision (b), was amended effective January 1, 2020, to provide:
“Except where subdivision (a) applies, where the new offense is any felony for which a prison
sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is
imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court
shall impose a one-year term for each prior separate prison term for a sexually violent offense as
defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no
additional term shall be imposed under this subdivision for any prison term served prior to a
period of five years in which the defendant remained free of both the commission of an offense
which results in a felony conviction, and prison custody or the imposition of a term of jail

                                                3.
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.
                                        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 (§ 1192.5), by the People’s
acceptance of a plea to a lesser offense than that charged, either in degree (§§ 1192.1,
1192.2) or kind [citation], or by the prosecutor’s dismissal of one or more counts of a
multi-count indictment or information. Judicial approval is an essential condition
precedent to the effectiveness of the “bargain” worked out by the defense and



custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not
suspended.” (Sen. Bill. No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1, italics added.)


                                               4.
prosecution. [Citations.] But implicit in all of this is a process of “bargaining” between
the adverse parties to the case—the People represented by the prosecutor on one side, the
defendant represented by his counsel on the other—which bargaining results in an
agreement between them.’” (People v. Segura (2008) 44 Cal.4th 921, 929–930 (Segura);
accord, People v. Clancey (2013) 56 Cal.4h 562, 569–570; People v. Martin (2010) 51
Cal.4th 75, 79 (Martin).)
       “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.)



                                               5.
       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 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.”
              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
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

                                              6.
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, fn. omitted; accord, People v. Panizzon
(1996) 13 Cal.4th 68, 75–76 (Panizzon).) 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; accord, People v. Maultsby, supra, at pp. 302–303; see People v.
Shelton (2006) 37 Cal.4th 759, 766.)
       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 4 and admitted the
enhancements on August 29, 2017, and, on September 26, 2017, the trial court imposed a
stipulated sentence of eight years four months. At that time, trial courts lacked discretion
under section 667, former subdivision (a)(1), and section 1385, former subdivision (b), to
strike or dismiss the five-year prior serious felony conviction enhancement. After
sentencing, defendant filed a timely notice of appeal, stating he was appealing the
sentence or other matters after the plea not affecting the validity of the plea. (§ 1237.5;
Cal. Rules of Court, rules 8.304(b)(4)(B), 8.308(a).)
       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

                                               7.
No. 1393 amended section 667, subdivision (a)(1), and section 1385, subdivision (b), to
permit trial courts to strike the prior serious felony conviction enhancement in
furtherance of justice. Defendant subsequently filed an opening brief arguing that Senate
Bill No. 1393 applies retroactively to cases not yet final on appeal and that he is entitled
to remand to afford the trial court the opportunity to exercise its discretion to strike the
five-year serious felony conviction enhancement.6
       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 (§ 1237.5; Cal. Rules of Court,
rule 8.304(b)(4)(B)), and that Hurlic, which held to the contrary, was wrongly decided
(Hurlic, supra, 25 Cal.App.5th at p. 53). Alternatively, they contend that even if we
agree with Hurlic and conclude that defendant did not need to obtain a certificate of
probable cause, remand would be futile.
       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 section 12022.53, subdivision (c), pursuant to a
negotiated plea bargain that did not include a waiver of the right to appeal. (Hurlic,
supra, 25 Cal.App.5th at pp. 53–54.) He was sentenced to the stipulated term of 25 years


6      Defendant’s initial opening brief raised an issue that was rendered moot by the California
Supreme Court’s decision in People v. Ruiz (2018) 4 Cal.5th 1100. He thereafter moved to strike
the opening brief and replace it with a brief filed pursuant to People v. Wende (1979) 25 Cal.3d
436. After his motion was granted, Senate Bill No. 1393 passed. Defendant subsequently filed a
motion to strike his Wende brief and file an opening briefing, raising a claim for relief under
Senate Bill No. 1393, which was granted.


                                               8.
in prison and, shortly thereafter, the Governor signed Senate Bill No. 620, which
amended sections 12022.5 and 12022.53 effective January 1, 2018, to permit a trial court,
in the furtherance of justice, to strike or dismiss a firearm enhancement otherwise
required to be imposed under the statute.7 (Hurlic, supra, at pp. 53–54.) Defendant then
filed a timely notice of appeal and noted on the appeal form that he was requesting a
certificate of probable cause to seek relief under Senate Bill No. 620. (Hurlic, supra, at
p. 54.) For reasons left unclear, the trial court did not issue a certificate of probable
cause. (Ibid.)
       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




7      Senate Bill No. 620 (2017-2018 Reg. Sess.) ch. 682, §§ 1, 2 (Senate Bill No. 620 or Sen.
Bill No. 620).


                                               9.
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
additional laws for the public good and in pursuance of public policy.’”’ (Doe[, supra,]
57 Cal.4th [at p. 66,] quoting People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.) Put
differently, courts will not amend a plea agreement to add ‘“an implied promise [that] the
defendant will be unaffected by a change in the statutory consequences attending his or
her conviction.”’”8 (Hurlic, supra, 25 Cal.App.5th at p. 57, quoting Harris, supra, 1
Cal.5th at p. 991.)
       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

8       As previously stated, recently enacted Assembly Bill No. 1618 amended the Penal Code
to provide, in relevant part, that 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.”
(§ 1016.8, subd. (b).)


                                                 10.
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 section 1237.5’s screening mechanism.” (Hurlic, supra, 25 Cal.App.5th at pp. 57–58.)
       Finally, the court explained, “[T]he rules of statutory construction favor
application of Senate Bill No. 620 (2017-2018 Reg. Sess.) over section 1237.5. Where
two statutes conflict, courts give precedence to the later-enacted statute and precedence to
the more specific statute. (State Dept. of Public Health v. Superior Court (2015) 60
Cal.4th 940, 960–961.) And if those two rules of precedence conflict, the more specific
statute trumps—even if it is earlier enacted. (Ibid.) In this case, Senate Bill No. 620 is
the later-enacted statute because it was enacted in 2017, while section 1237.5 was
enacted in 1988. Senate Bill No. 620 is also more specific because it deals with a
particular sentencing enhancement, whereas section 1237.5 deals more generally with
appeals from pleas. Under these canons of construction, in the tug of war between our
Legislature’s competing intents to have a screening mechanism for appeals following
pleas and to give defendants whose convictions are not yet final the benefit of a possible
sentencing reduction, the latter intent prevails.” (Hurlic, supra, 25 Cal.App.5th at p. 58.)
                     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

                                             11.
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 section 12022.53.9 (Baldivia,
supra, 28 Cal.App.5th at pp. 1073–1075.) Pursuant to the plea bargain, the trial court
sentenced the defendant in June 2016 to a stipulated term of 17 years four months. (Id. at
p. 1074.) Subsequently, voters passed Proposition 57 in November 2016 and Senate Bill
No. 620 was enacted effective January 1, 2018. (Baldivia, supra, at p. 1075.)
       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. 1076.) The parties
agreed the issues could be raised, and the People also conceded that the defendant was
entitled to remand under Proposition 57 and Senate Bill No. 620. (Baldivia, 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. 1076–1077.) The court in Baldivia 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


9      The People’s opening brief in this case was filed on the same day the decision in Baldivia
was issued.


                                              12.
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.)




                                             13.
              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, concluded that a certificate of probable cause was required to request
discretionary relief under Senate Bill No. 1393 and the court dismissed the defendant’s
appeal. (Kelly, supra, at pp. 1018–1019.) The Kelly court distinguished Hurlic on the
basis that where the defendant in Hurlic sought a certificate of probable cause to avail
himself of relief under Senate Bill No. 620, the defendant in the instant case did not
identify a new law as the basis for appeal. (Kelly, supra, at p. 1017; contra, Stamps,
supra, 34 Cal.App.5th at pp. 123–124, review granted [finding Kelly’s analysis
unpersuasive given failure to address Hurlic’s reasoning & failure to consider Baldivia,
Doe or Harris].)
                     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.)



                                            14.
       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 granted, quoting Harris, supra, 1 Cal.5th at p. 991.)
Although the court agreed that Senate Bill No. 620 is retroactive to judgments not yet
final on appeal, it disagreed that retroactive application “equates to the Legislature’s
intent that the change be incorporated into all plea agreements in cases where the
judgment is not yet final.” (Fox, supra, at p. 1136.) The court stated in sum, “[W]e
cannot conclude that the Legislature intended the new law to enable defendants who
agreed to serve a specific term for a firearm enhancement to avoid that term yet retain the
benefits of their plea agreements. Rather, we conclude the remedy for such defendants is
to seek to withdraw their pleas, and they may therefore seek resentencing under Senate
Bill No. 620 on direct appeal only if they first obtain a certificate of probable cause—
hardly as onerous a requirement as Hurlic suggests—to enable them to challenge the
validity of their pleas.” (Id. at p. 1139.)



                                              15.
                      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 granted the trial court discretion to select the sentence.” (Galindo, supra,
35 Cal.App.5th at p. 670, review granted.) Further, the court distinguished Doe and
Harris on the grounds that neither case involved a certificate of probable cause and that
both cases involved express language evidencing application of the relevant amendment
to the defendant.10

10      In Doe, the relevant change in the law related to the Sex Offender Registration Act (§ 290
et seq.), and the change at issue applied, by express statutory language, to “‘every person

                                               16.
                      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.)



described in this section, without regard to when his or her crimes were committed or his or her
duty to register pursuant to Section 290 arose, and to every offense described in this section,
regardless of when it was committed.’” (Doe, supra, 57 Cal.4th at pp. 66–67, italics added,
quoting section 290.46, subd. (m).) However, the California Supreme Court was tasked only
with articulating the general rule applicable to plea bargains and changes in the law, at the
request of the Ninth Circuit Court of Appeals. (Doe, supra, at pp. 65–66.) The court did not
address the merits of the defendant’s underlying claim that he was entitled to withdraw from his
plea bargain based on the unfavorable change in the law. (Id. at pp. 66–68.)
        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 § 1170.18, subd. (a).) In that case, based on the proposition’s mandatory
language and express application to convictions by trial and plea, the court rejected the People’s
position that they were entitled to withdraw from the plea agreement given the change in the law,
which was unfavorable to them. (Harris, supra, at pp. 991–992.)


                                               17.
       D.     Analysis

              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 [(Estrada)].) 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


                                             18.
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 those changes 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 (dis. opn. of Needham, J.), review granted Oct. 16, 2019, No. S257190.)11 We
disagree.
       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

11      In our view, the holding in Fox was informed in part by the facts that the defendant was
fully aware of the pertinent amendment to the law prior to entry of the plea and sentencing, and
that he could have but did not avail himself of the process to obtain a certificate of probable
cause. (Fox, supra, 34 Cal.App.5th at p. 1135 & fn. 5, review granted.) Galindo and Williams,
however, extended the holding of Fox to defendants who, at the time of sentencing and appeal,
could not have known of the future change in the law and, therefore, could not have obtained a
certificate of probable cause on the issue. (Williams, supra, 37 Cal.App.5th at p. 604, review
granted; Galindo, supra, 35 Cal.App.5th at pp. 663–664 & 670, review granted.)


                                               19.
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,
review granted; see People v. Alexander, supra, 36 Cal.App.5th at p. 845 (dis. opn. of
Needham, J.), review granted.)12
       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

12      Fox relied in part on People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047–1048
(Cunningham), which involved a defendant with a prior strike conviction. (Fox, supra, 34
Cal.App.5th at p. 1139, review granted; accord, Galindo, supra, 35 Cal.App.5th at pp. 670–671,
review granted.) The defendant in Cunningham pled guilty to petty theft with a prior after the
court concluded it lacked the discretion to grant his request to strike the prior conviction, and he
was sentenced under a plea bargain to a stipulated sentence of 32 months. (Cunningham, supra,
at p. 1046.) On appeal, the defendant sought remand to allow the trial court to exercise
discretion regarding whether to strike the prior felony conviction. (Ibid.) The Court of Appeal
acknowledged the California Supreme Court’s then-recent decision “that the three strikes law did
not abrogate the discretion of a magistrate or court to strike a prior offense in the interest of
justice pursuant to section 1385” (id. at p. 1047, citing Romero, supra, 13 Cal.4th at pp. 529–
530), but it concluded that the defendant was bound by the plea agreement and his “express
agreement to imposition of a 32–month term precludes a remand for the purpose of obtaining a
lesser term by virtue of the trial court’s striking of the prior offense” (Cunningham, supra, at p.
1048). We are bound by the California Supreme Court’s decisions in Doe and Harris, and we
find the reasoning in Cunningham, which was decided approximately two decades earlier,
uncompelling.


                                                20.
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. (§ 1018.6, subds. (a)(1), (b), eff. Jan. 1, 2020.)
              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 to
Senate Bill No. 1393 compels the conclusion that defendant is entitled to seek the benefit
of change in the law.
       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.

                                              21.
(§ 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. 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 §§ 1018, 1192.5.)13 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,


13       For example, depending on the case, the trial court may set the matter for further pretrial
or trial proceedings, or permit the parties an opportunity to negotiate a new plea agreement.


                                                 22.
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.
       We express no further opinion on the matter other than to reiterate that while
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 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).
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

                                            23.
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 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 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 § 1018; Martin, supra, 51 Cal.4th at pp. 79–81; 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;

                                             24.
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. (§ 1016.8, subd. (b), eff. Jan. 1, 2020; Doe,
supra, at pp. 73–74; Harris, supra, at pp. 990–991.) Therefore, defendant is entitled to a
limited remand to allow him the opportunity to request relief under Senate Bill No. 1393.
                                          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.




                                              25.
