Filed 4/9/19
                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                      DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                    A154091
v.
WILLIAM STAMPS,                                     (Alameda County
                                                    Super. Ct. No. 17CR010629)
         Defendant and Appellant.


         In exchange for a stipulated nine-year sentence and the dismissal of other counts,
defendant William Stamps plead no contest to one count of residential burglary (Pen.
Code,1 § 459) and admitted a prior serious felony conviction (§ 667, subds. (a)(1)). The
court sentenced defendant to the stipulated prison term, which consisted of the low term
of two years for the burglary doubled pursuant to sections 1170.12, subdivision (c)(1) and
667, subdivision (e)(1) and a five-year enhancement pursuant to section 667, subdivision
(a)(1). On appeal, defendant contends the matter must be remanded so that the trial court
may exercise its discretion to strike the five-year serious felony conviction enhancement
pursuant to recently enacted Senate Bill No. 1393. (Legis. Counsel’s Dig., Sen. Bill No.
1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2.) We agree and, accordingly,
remand for a new sentencing hearing to decide whether to exercise that discretion.




1
    All statutory references are to the Penal Code unless otherwise noted.


                                               1
                                        Background
       Defendant was sentenced on January 10, 2018. On March 29, 2018, defendant
timely filed a notice of appeal. His request for a certificate of probable cause was denied.2
       At the time of defendant’s sentencing, the trial court did not have discretion to
strike an enhancement imposed under section 667, subdivision (a)(1). (Pen. Code, former
§ 1385, subd. (b); Stats. 2014, ch. 137, § 1, eff. Jan. 1, 2015 [“This section does not
authorize a judge to strike any prior conviction of a serious felony for purposes of
enhancement of a sentence under Section 667.”].) On September 30, 2018, the Governor
signed Senate Bill No. 1393 that, effective January 1, 2019, amended section 1385 to
delete former subdivision (b) and give trial courts the discretion to dismiss five-year
sentence enhancements under section 667, subdivision (a). (See Legis. Counsel’s Dig.,
Sen. Bill No. 1393 [“This bill would delete the restriction prohibiting a judge from
striking a prior serious felony conviction in connection with imposition of [a] 5-year
enhancement . . . .”].)
                                         Discussion
       Defendant contends that because his case is not yet final and the recent
amendment applies retroactively, the judgment should be reversed and the matter
remanded for resentencing to allow the trial court an opportunity to exercise its discretion
to strike the enhancement. The Attorney General agrees that the Senate Bill No. 1393
amendment applies retroactively (People v. Garcia (2018) 28 Cal.App.5th 961, 973), but
insists that defendant is not entitled to the requested relief because his plea bargain




2
  Defendant requested a certificate of probable cause on the following grounds: “My base
term was 2 years for a 1st degree burglary residential, which was a serious non-violent
crime, where no forced entry was made. I only went into a carport garage (walk through)
that was attached to an apartment complex. Besides the 2-year base term, I was also
given 7 years of enhancements which made it 9 years 80%. . . . I truly believed I was
unfairly sentenced.”


                                              2
contained a stipulated sentence of nine years and he was sentenced in conformity with the
negotiated plea.3
       Initially, the Attorney General argues that the appeal should be dismissed because
defendant did not obtain a certificate of probable cause. (§ 1237.5.) While ordinarily the
failure to obtain a certificate of probable cause would preclude a challenge to a negotiated
sentence, in People v. Hurlic (2018) 25 Cal.App.5th 50 (Hurlic), the court held that the
ordinary rule does not apply when the challenge is based on a retroactive change in the
law. In its well-reasoned decision, the court gave three reasons for applying “the law
governing the retroactivity of new criminal statutes” (id. at p. 56) rather than “the law
interpreting the certificate of probable cause requirement in section 1237.5” (id. at p. 55).
First, absent an explicit provision in a plea agreement to the contrary, the plea must be
deemed to incorporate the subsequently enacted legislation. (Id. at p. 57.) Second, the
purpose of the certificate of probable cause requirement is to weed out frivolous appeals
and that purpose would not be served where “the defendant’s entitlement to a new law’s

3
  We note briefly that there is no contention here that defendant waived his right to appeal
the issue before us. Recent authority is in conflict as to whether a waiver of appellate
rights that includes reference to a stipulated sentence bars relief under a postjudgment
change of law. (Compare People v. Wright (2019) 31 Cal.App.5th 749 [plea agreement
that includes a specified prison term and a waiver of the right to appeal the sentence did
not waive future sentencing error based on a change in the law of which defendant was
unaware at the time the plea was entered] with People v. Barton (2019) 32 Cal.App.5th
1088 [plea agreement that includes a specified prison term and a waiver of the right to
appeal the sentence precludes future challenges to the legality of the agreed-upon period
of confinement].) In this case, however, defendant entered a general waiver of his
appellate rights that did not preclude review of his sentence. The waiver read, “I hereby
give up my right to appeal from this conviction, including an appeal from the denial of
any pretrial motions.” A “waiver that is nonspecific, e.g., ‘I waive my appeal rights’ or ‘I
waive my right to appeal any ruling in this case,’ ” is considered a general waiver.
(People v. Panizzon (1996) 13 Cal.4th 68, 85, fn. 11.) “A broad or general waiver of
appeal rights ordinarily includes error occurring before but not after the waiver because
the defendant could not knowingly and intelligently waive the right to appeal any
unforeseen or unknown future error. [Citation.] Thus, a waiver of appeal rights does not
apply to ‘ “possible future error” [that] is outside the defendant’s contemplation and
knowledge at the time the waiver is made.’ ” (People v. Mumm (2002) 98 Cal.App.4th
812, 815.)


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retroactive application is undisputed” and therefore “an appeal seeking such application
is neither ‘frivolous’ nor ‘vexatious.’ ” (Id. at p. 58.) Third, under the rules of statutory
construction, “[w]here two statutes conflict, courts give precedence to the later-enacted
statute and precedence to the more specific statute.” (Ibid.; see also People v. Baldivia
(2018) 28 Cal.App.5th 1071, 1077 (Baldivia) [following Hurlic].) Contrary to the
Attorney General’s argument, Hurlic is not based on the rationale that the defendant in
that case did not check the box on his notice of appeal indicating he was challenging the
validity of his plea but was seeking to avail himself of the new legislation. All of the
reasons for the decision explained in Hurlic are fully applicable in the present case.
       The Attorney General places heavy reliance on People v. Enlow (1998) 64
Cal.App.4th 850, in which the court rejected (for failure to obtain a certificate of probable
cause and on the merits) a defendant’s attempt to reduce an agreed upon sentence based
on the expiration of the statute that had temporarily increased the penalty to which the
defendant had agreed. As the Hurlic court explained, Enlow is “distinguishable because
the statutory change in Enlow was not truly a ‘new law’; the statute’s anticipated sunset
was already on the books (and thus part of the legal landscape) at the time the plea
agreement was negotiated, such that the parties’ agreement to a specific sentence that did
not account for the sunset was ‘part of the deal’ and thus his attack on that sentence went
to the validity of the plea itself.” (Hurlic, supra, 25 Cal.App.5th at p. 58; see also
Baldivia, supra, 28 Cal.App.5th at p. 1079 [“defendant’s appellate contentions were not
an attack on the validity of his plea and did not require a certificate of probable cause”].)4
Like the statutory change in Hurlic, the amendment in the present case was not on the
books or anticipated when defendant entered his plea agreement, so that his present
appeal is not a challenge to the validity of the plea itself.



4
  Hurlic also regarded Enlow as unpersuasive because it did “not make any effort to
reconcile section 1237.5 with the second line of authority involving retroactive
application of new laws ameliorating criminal sentences.” (Hurlic, supra, 25 Cal.App.5th
at p. 59.)


                                               4
       The Attorney General argues further that retroactive application of new law in this
case would deprive the prosecution of the benefit of its plea bargain. Both Hurlic, supra,
25 Cal.App.5th at page 57 and Baldivia, supra, 28 Cal.App.5th at pages 1077-1078
rejected this argument. As the court explained in Hurlic, “Unless a plea agreement
contains a term requiring the parties to apply only the law in existence at the time the
agreement is made, . . . ‘the general rule in California is that the plea agreement will be “
‘deemed to incorporate and contemplate not only the existing law but the reserve power
of the state to amend the law or enact additional laws for the public good and in
pursuance of public policy.’ ” ’ ” (Hurlic, supra, 25 Cal.App.5th at p. 57; Baldivia, supra,
at p. 1077, citing Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe); see also People v.
Wright, supra, 31 Cal.App.5th at p. 755 [“Although the parties and the trial court may not
unilaterally alter the terms of a plea bargain [citation], the Doe court concluded that
subsequent statutory enactments or amendments may alter the terms of the plea
bargain.”].)
       In Doe, supra, 57 Cal.4th at pages 66-67, the California Supreme Court held that
amendments to the sex offender registration law, which allowed for publication of certain
information about registered sex offenders, could be applied to Doe, who had entered into
a plea agreement at a time when the law prohibited such public access. The court
explained, “[T]he parties to a plea agreement—an agreement unquestionably infused with
a substantial public interest and subject to the plenary control of the state—are deemed to
know and understand that the state, again subject to the limitations imposed by the
federal and state Constitutions, may enact laws that will affect the consequences
attending the conviction entered upon the plea.” (Id. at p. 70.) Thereafter, in Harris v.
Superior Court (2016) 1 Cal.5th 984, 991 (Harris), the California Supreme Court applied
Doe to a plea agreement that had been entered into prior to the enactment of
Proposition 47, which permitted courts to resentence prior felony convictions as
misdemeanors. The court held that defendant was entitled to have his grand theft
conviction resentenced as a misdemeanor and that the change in law did not permit the
prosecution to withdraw from the plea agreement and reinstate the original charges.


                                              5
(Harris, at pp. 989-991.) The court explained, “The electorate exercised that authority in
enacting Proposition 47. It adopted a public policy respecting the appropriate term of
incarceration for persons convicted of certain crimes, including grand theft from the
person. The policy applies retroactively to all persons who meet the qualifying criteria
and are serving a prison sentence for one of those convictions, whether the conviction
was by trial or plea. The electorate may bind the People to a unilateral change in a
sentence without affording them the option to rescind the plea agreement. The electorate
did so when it enacted Proposition 47.” (Harris, at p. 992.)
       The court in Harris, supra, 1 Cal.5th at page 993, distinguished People v. Collins
(1978) 21 Cal.3d 208, in which the court held that when an intervening act of the
Legislature decriminalizes the conduct for which a defendant was convicted, the state is
substantially deprived of the benefits for which it agreed to enter the bargain and thus, it
may restore the charges that were dismissed as part of the negotiated plea. The Harris
court explained that in Collins “we allowed the People to withdraw from a plea
agreement before sentencing where a change in the law had decriminalized the offense to
which the defendant had pled. The change eviscerated the judgment and the underlying
plea bargain entirely, and it did so before the judgment. That is not the case here. Thus,
while the rule of Doe, supra, 57 Cal.4th 64, governs this case, we believe Doe and
Collins can be harmonized.” (Harris, supra, 1 Cal.5th at p. 993.)
       Because the Senate Bill No. 1393 amendment was intended to apply retroactively,
defendant is entitled to seek relief under the new law. (See Doe, supra, 57 Cal.4th at
pp. 73-74 [“It follows, also as a general rule, that requiring the parties’ compliance with
changes in the law made retroactive to them does not violate the 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.”]; People v.
Wright, supra, 31 Cal.App.5th at p. 756 [“If parties to a plea agreement want to insulate



                                              6
the agreement from future changes in the law they should specify that the consequences
of the plea will remain fixed despite amendments to the relevant law.”].)
       The Attorney General’s arguments on appeal are supported by the recent decision
in People v. Kelly (2019) 32 Cal.App.5th 1013, in which the court considered the
retroactive application of a new law to a stipulated sentence a “ ‘bounty in excess of that
to which [the defendant] is entitled.’ ” (Id. at p. 1018.) We are not persuaded by Kelly
because, among other reasons, it failed to consider the reasoning on which Hurlic is
based,5 and it failed to cite or consider Baldivia, supra, 28 Cal.App.5th 1071, Doe, supra,
57 Cal.4th 64, or Harris, supra, 1 Cal.5th 984.
       Finally, the Attorney General argues that remand for resentencing is unwarranted
because the trial court indicated, by accepting the plea, it would not have dismissed the
enhancement if it had the discretion to do so. (People v. Billingsley (2018) 22
Cal.App.5th 1076, 1081 [remand is required when “the record does not ‘clearly indicate’
the court would not have exercised discretion to strike the firearm allegations had the
court known it had that discretion”]; People v. McDaniels (2018) 22 Cal.App.5th 420,
425 [remand is not required if “the record shows that the trial court clearly indicated
when it originally sentenced the defendant that it would not in any event have stricken
[the previously mandatory] enhancement”].) The court’s acceptance of the negotiated
sentence, however, does not clearly establish that the court would not have exercised
discretion to strike the enhancement if it had that discretion.
       Accordingly, we must remand for the purpose of allowing the trial court to
consider whether to strike the section 667, subdivision (a) enhancement. In exercising its
discretion, the trial court is not precluded from considering whether doing so would be
incompatible with the agreement on which defendant’s plea was based. If the trial court
strikes the enhancement, it shall resentence defendant. In selecting an appropriate


5
  The court in Kelly, like the Attorney General here, asserted that Hurlic is based on the
“narrow circumstance” of the manner in which the defendant completed his notice of
appeal. (People v. Kelly, supra, 32 Cal.App.5th at p. 1016.) As explained in text, ante,
that is not the rationale on which Hurlic is based.


                                              7
sentence, the court retains its full sentencing discretion except that it may not impose a
term in excess of the negotiated nine years without providing defendant the opportunity
to withdraw his plea. (People v. Wright, supra, 31 Cal.App.5th at p. 756 [“On remand the
trial court is to resentence [defendant] in accordance with the applicable statutes and
rules, provided that the aggregate term does not exceed the stipulated sentence.”].) If the
trial court does not strike the enhancement, it shall reinstate the sentence.
                                         Disposition
       The judgment is reversed and the matter is remanded to permit the court to
determine whether to strike the enhancement under Penal Code section 667,
subdivision (a) and to resentence defendant accordingly. In all other respects the
judgment is affirmed.



                                                   POLLAK, P. J.


WE CONCUR:

STREETER, J.
BROWN, J.




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Trial court:                           Alameda County Superior Court

Trial judge:                           Honorable James Cramer

Counsel for plaintiff and appellant:   Xavier Becerra, Attorney General, Gerald A. Engler
                                       Chief Assistant Attorney General, Jeffrey M. Laurence,
                                       Senior Assistant Attorney General, René A. Chacón,
                                       Supervising Deputy Attorney General

Counsel for defendant and appellant:   James S. Donnelly-Saalfield by appointment of the
                                       Court of Appeal




A154091


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