        IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                    WILLIAM STAMPS,
                  Defendant and Appellant.

                           S255843

            First Appellate District, Division Four
                           A154091

               Alameda County Superior Court
                       17CR010629



                        June 25, 2020

Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
Kruger, and Groban concurred.
                      PEOPLE v. STAMPS
                            S255843


              Opinion of the Court by Corrigan, J.


      Defendant entered into a plea agreement for a specified
term that included a prior serious felony enhancement (Pen.
Code, § 667, subd. (a)). While his appeal was pending, a new
law went into effect permitting the trial court to strike a serious
felony enhancement in furtherance of justice (Pen. Code, § 1385,
subd. (a)), which it was not previously authorized to do. We hold
defendant was not required to obtain a certificate of probable
cause (Pen. Code, § 1237.5) to claim on appeal that the new law
applied to him retroactively, and that the new law applies
because his case is not yet final on appeal. Although we agree
with defendant that the matter must be remanded to the trial
court, we reject his contention that the court is authorized to
exercise its discretion to strike the enhancement but otherwise
maintain the plea bargain. Defendant on remand may seek the
court’s exercise of discretion, but if the court chooses to strike
the enhancement, its decision will have consequences to the plea
agreement. (See discussion post, at pp. 21-27.)
                       I. BACKGROUND
       Defendant William Stamps was charged with three counts
of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). The
complaint also alleged two prior first degree burglary
convictions as serious felonies under the “Three Strikes” law and




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                  Opinion of the Court by Corrigan, J.


the serious felony enhancement provision.1 Three state prison
prior convictions were also alleged. (Pen. Code, § 667.5, subd.
(b).)   Had defendant been convicted of all counts and
enhancements, he would have been subject to the 25-years-to-
life provisions of the Three Strikes law (Pen. Code, § 1170.12,
subd. (c)(2)) along with any applicable fixed-term
enhancements.
      In November 2017, pursuant to negotiation, defendant
pled to one first degree burglary and admitted one serious felony
conviction in exchange for a nine-year prison sentence, based on
the low term for burglary (two years), doubled under the Three
Strikes law (Pen. Code, § 1170.12, subd. (c)(1)), plus five years
for the serious felony enhancement. All remaining counts and
allegations were dismissed on motion of the district attorney as
part of the plea agreement. Defendant was sentenced in
January 2018, subsequently filed a notice of appeal, and sought
a certificate of probable cause (Pen. Code, § 1237.5; Cal. Rules
of Court, rule 8.304(b)), which the trial court denied.
       On September 30, 2018, the governor approved Senate Bill
No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) allowing a
trial court to dismiss a serious felony enhancement in
furtherance of justice.2 After the law was signed but before it
became effective on January 1, 2019, defendant filed an opening
brief in the Court of Appeal. He raised a single claim that, in
light of Senate Bill 1393, his case should be remanded to the
trial court to exercise its discretion whether to strike the serious
felony enhancement. The Attorney General countered that

1
       (See Pen. Code, §§ 667, subd. (a)(1), (4), 1170.12, subds.
(b)(1), (c)(2), 1192.7, subd. (c)(18).)
2
       (See Stats. 2018, ch. 1013, §§ 1 & 2.)


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                 Opinion of the Court by Corrigan, J.


defendant’s appeal was not cognizable because he failed to
obtain a certificate of probable cause. The Court of Appeal
concluded a certificate was not required and Senate Bill 1393
applied retroactively to defendant.         It then remanded,
permitting the trial court to exercise its discretion whether to
strike the enhancement.3       (People v. Stamps, supra, 34
Cal.App.5th at pp. 120-124; see discussion post.) We agree on
the certificate question but modify the remand order.
                        II. DISCUSSION
     A. A Certificate of Probable Cause Was Not Required
      Generally, a defendant may appeal “from a final judgment
of conviction.” (Pen. Code, § 1237, subd. (a).) However, if the
judgment resulted from a guilty or no contest plea, Penal Code4
section 1237.5, subdivisions (a) and (b), provide that no appeal
may be taken unless “[t]he 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,” and the
court “has executed and filed a certificate of probable cause for


3
      The Court of Appeal concluded: “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 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. [Citation.] If the trial court
does not strike the enhancement, it shall reinstate the
sentence.” (People v. Stamps (2019) 34 Cal.App.5th 117, 124.)
4
      Subsequent statutory references are to the Penal Code
unless noted.


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such appeal with the clerk of the court.” “[S]ection 1237.5
admits of this exception: The defendant may take an appeal
without a statement of certificate grounds or a certificate of
probable cause if he does so solely on noncertificate grounds,
which go to postplea matters not challenging his plea’s validity
and/or matters involving a search or seizure whose lawfulness
was contested pursuant to section 1538.5.” (People v. Mendez
(1999) 19 Cal.4th 1084, 1096; People v. Panizzon (1996) 13
Cal.4th 68, 74 (Panizzon); see Cal. Rules of Court, rule
8.304(b)(4).) A certificate of probable cause functions to
discourage frivolous appeals following a guilty or no contest
plea. It promotes judicial economy by screening out baseless
postplea appeals before time and money are spent on record
preparation, briefing and appellate review. (See Panizzon, at
pp. 75-76.)
       “It has long been established that issues going to the
validity of a plea require” a certificate of probable cause.
(Panizzon, supra, 13 Cal.4th at p. 76.) “Even when a defendant
purports to challenge only the sentence imposed, a
certificate . . . is required if the challenge goes to an aspect of the
sentence to which the defendant agreed as an integral part of a
plea agreement.” (People v. Johnson (2009) 47 Cal.4th 668, 678
(Johnson).) “[T]he critical inquiry is whether a challenge to the
sentence is in substance a challenge to the validity of the plea,
thus rendering the appeal subject to the [certificate]
requirements of section 1237.5.” (Panizzon, at p. 76.)
      We have stated in a different context that “a challenge to
a negotiated sentence imposed as part of a plea bargain is
properly viewed as a challenge to the validity of the plea itself.”
(Panizzon, supra, 13 Cal.4th at p. 79.) This characterization was
correct in its context, but it is not universally applicable.

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                         PEOPLE v. STAMPS
                  Opinion of the Court by Corrigan, J.


Panizzon’s claim that his sentence was cruel and unusual
attacked the validity of his plea because “the sentence defendant
received was part and parcel of the plea agreement he
negotiated with the People.” (Id. at p. 78.) In so concluding, we
rejected the defendant’s argument that “his claim of error, i.e.,
that the bargained sentence is unconstitutional when compared
to the sentences of his codefendants, is based on events that
occurred after the no contest plea was entered.” (Ibid.) The
circumstance that Panizzon’s codefendants were later sentenced
to lesser terms merely bolstered his essential claim that the
sentence agreed to in the plea bargain was constitutionally
defective at the time the agreement was made. As Panizzon
reasoned, “the essence of defendant’s claim is that his sentence
is disproportionate to his level of culpability [citation], a factor
that also was known at the time of the plea and waiver. Thus,
the real thrust of defendant’s claim concerns events predating
entry of the plea and waiver.” (Id. at p. 86.) Such an argument
attacks the plea itself.
      Similarly, we held that a claim the trial court violated the
multiple punishment ban of section 654 constituted an attack on
the plea where the court imposed the maximum term agreed
upon by the parties: “[T]he specification of a maximum sentence
or lid in a plea agreement normally implies a mutual
understanding of the defendant and the prosecutor that the
specified maximum term is one that the trial court may lawfully
impose and also a mutual understanding that, absent the
agreement for the lid, the trial court might lawfully impose an
even longer term.” (People v. Shelton (2006) 37 Cal.4th 759, 768;
see also People v. Cuevas (2008) 44 Cal.4th 374, 379-384
(Cuevas).) Again, Shelton sought to attack the plea bargain as



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                        PEOPLE v. STAMPS
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defective when it was made because it permitted a sentence
prohibited by statute.
       These cases teach that when the parties reach an
agreement in the context of existing law, a claim that seeks to
avoid a term of the agreement, as made, is an attack on the plea
itself. They do not, however, address the nature of a challenge
based, not upon existing law, but on a subsequent change in the
law. Defendant’s appellate claim here relies on the principle
that “the general rule in California is that plea agreements are
deemed to incorporate 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 v. Harris (2013) 57 Cal.4th 64,
71.) “That the parties enter into a plea agreement thus does not
have the effect of insulating them from changes in the law that
the Legislature has intended to apply to them” (id. at p. 66), and
“[i]t follows . . . that requiring the parties’ compliance with
changes in the law made retroactive to them does not violate the
terms of the plea agreement” (id. at p. 73). (See Harris v.
Superior Court (2016) 1 Cal.5th 984, 990-991; see discussion
post.)
      Defendant argues that a certificate of probable cause was
not required because he is not challenging the validity of his
plea. Rather, he is seeking retroactive application of a
subsequently enacted ameliorative provision, which he contends
has been incorporated into his plea agreement. We agree
defendant was not required to obtain a certificate. His appellate
claim does not constitute an attack on the validity of his plea
because the claim does not challenge his plea as defective when
made. We separately discuss the retroactivity and remedy
questions post.



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                         PEOPLE v. STAMPS
                  Opinion of the Court by Corrigan, J.


       As discussed, a claim that seeks to avoid a term of a plea
agreement can constitute an attack on the validity of the plea
itself, necessitating a certificate of probable cause. “Exempt
from this certificate requirement are postplea claims, including
sentencing issues, that do not challenge the validity of the plea.”
(Cuevas, supra, 44 Cal.4th at p. 379.) Whether an appeal
challenges the validity of the plea itself, requiring a certificate,
or seeks merely to correct alleged postplea error can be a
nuanced question. Defendants who lack a required certificate
may structure their appellate arguments to try and obviate the
need for one.
       In People v. Ribero (1971) 4 Cal.3d 55 (Ribero), the
defendant sought to withdraw his plea, arguing he was misled
by counsel as to the sentence he would receive. He then
appealed from the denial of that motion. In Johnson, supra, 47
Cal.4th 668, the defendant claimed on appeal his counsel was
ineffective for not supporting his unsuccessful attempt to
withdraw a plea. Neither Ribero nor Johnson had obtained a
certificate of probable cause and asserted one was not necessary
because they were not attacking the validity of their plea but
seeking instead review of postplea error. Those arguments were
rejected based on the facts of the cases. In each case, the essence
of the defendants’ argument was that his initial plea was
invalid. As the Ribero court explained: “[T]he crucial issue is
what the defendant is challenging, not the time or manner in
which the challenge is made. . . . If a defendant challenges the
validity of his plea by way of a motion to withdraw the plea, he
cannot avoid the [certificate] requirements . . . by labelling the
denial of the motion as an error in a proceeding subsequent to
the plea.” (Ribero, at pp. 63-64.)



                                   7
                         PEOPLE v. STAMPS
                  Opinion of the Court by Corrigan, J.


      In Ribero and Johnson, a certificate was required because
the defendants were arguing their pleas were defective when
made. Their subsequent motions to withdraw those pleas rested
on the argument that the plea itself was invalid. The timing of
their motions did not change the fact that the motions, the
denial of which they sought to appeal, challenged the underlying
integrity of the pleas themselves. Under Ribero and Johnson,
courts should look to the substance of a defendant’s claim and
not to whether it is labeled a postplea or sentencing issue. (See
Johnson, supra, 47 Cal.4th at p. 681; Ribero, supra, 4 Cal.3d at
p. 63.)
      Several cases serve to clarify the rule by way of distinction.
They provide examples in which the appeal does not attack the
validity of the plea itself but is properly understood as an appeal
from a postplea decision.
       In People v. French (2008) 43 Cal.4th 36 (French), the
defendant was charged with 12 counts of lewd act with a child
under 14 (§ 288, subd. (a)). If convicted on all counts, he faced a
maximum sentence of 180 years to life. He pled no contest to six
counts as part of a plea agreement, and six counts were
dismissed. The parties agreed that the maximum sentence
would be 18 years. At sentencing, the court imposed that term,
finding the aggravated term of eight years was called for in one
of the counts and imposing an additional, consecutive, one-third
of the midterm of two years for each of the remaining five counts.
The trial court selected the upper term for one count because it
found a circumstance in aggravation had been established.
(French, at pp. 41-43.)
     At the time of French’s plea, the determination of whether
aggravating factors supported a sentence above the midterm


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                        PEOPLE v. STAMPS
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was left to the discretion of the trial court. After entry of the
plea, United States Supreme Court cases held that a defendant
has a Sixth Amendment right to have a jury determine, beyond
a reasonable doubt, facts supporting an “exceptional sentence.”
(Blakely v. Washington (2004) 542 U.S. 296, 303; see United
States v. Booker (2005) 543 U.S. 220, 244; Ring v. Arizona (2002)
536 U.S. 584, 609; Apprendi v. New Jersey (2000) 530 U.S. 466,
481-484; French, supra, 43 Cal.4th at p. 48.) In Cunningham v.
California (2007) 549 U.S. 270, the high court concluded that,
under California’s determinate sentencing scheme (§ 1170), a
defendant has a Sixth Amendment right to have a jury, not a
judge, determine facts supporting an upper term sentence.
(Cunningham, at pp. 288-294.) French appealed the court’s
imposition of the upper term based on its finding of aggravated
circumstances. He did not, however, secure a section 1237.5
certificate. This court held that the certificate was not required.
The unanimous opinion reviewed holdings in Panizzon and
Shelton and contrasted them to the outcome in People v.
Buttram (2003) 30 Cal.4th 773 (Buttram). (French, at pp. 44-
46.)
      Buttram was charged with felony possession of heroin and
methamphetamine for sale (Health & Saf. Code, §§ 11351,
11378), along with two prior strikes and serious felony
convictions. As charged, he faced a 25-year-to-life sentence. He
pled guilty in return for a promise that his maximum sentence
would not exceed six years. At sentencing, the defense argued
against a prison term and urged instead that Buttram should be
sent to a drug treatment program. The court weighed the
sentencing options on the record, dismissed one strike and
sentenced Buttram to two concurrent six-year terms. (Buttram,
supra, 30 Cal.4th at pp. 777-779.) He appealed, without a


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                        PEOPLE v. STAMPS
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section 1237.5 certificate, arguing that the court abused its
discretion in imposing a prison term rather than requiring drug
treatment.      The Court of Appeal dismissed the appeal,
concluding it was an attack on the validity of the plea, but the
Buttram majority reversed. It explained that the defendant was
not attacking the validity of the plea as entered but only the
court’s postplea exercise of its sentencing discretion. It noted
long-standing precedent that “where the terms of the plea
agreement leave issues open for resolution by litigation,
appellate claims arising within the scope of that litigation do not
attack the validity of the plea, and thus do not require a
certificate of probable cause.” (Buttram, at p. 783, citing People
v. Ward (1967) 66 Cal.2d 571, 574-576.)
      We concluded in French that the defendant’s challenge
there was similar to Buttram’s. It did not assert that the plea
was invalid but, instead, that independent irregularities at his
sentencing hearing required reversal of that sentence.5 (French,
supra, 43 Cal.4th at p. 45.)
      Like Buttram and French, Stamps does not seek to put
aside or withdraw his plea. He does not urge that his plea was
invalid when made. Instead, he seeks relief because the law
subsequently changed to his potential benefit. His appeal, then,
does not attack the plea itself and does not require a certificate


5
      Nonsentencing cases, like People v. Vera (2004) 122
Cal.App.4th 970, also help clarify the distinction.          Vera
concluded a challenge to the court’s denial of a postplea Marsden
(People v. Marsden (1970) 2 Cal.3d 118) motion did not require
a certificate: “We regard the issue of whether defendant
currently needed a new attorney [at sentencing] as a postplea
issue not essentially implicating the validity of the no contest
plea.” (Vera, at p. 978.)


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                        PEOPLE v. STAMPS
                 Opinion of the Court by Corrigan, J.


of probable cause. We turn now to the merits of his retroactivity
claim and the proper remedy.
     B. Senate Bill 1393 Applies Retroactively
       Defendant argues that Senate Bill 1393 applies
retroactively to his plea bargain and requires a remand to the
trial court to consider striking the serious felony enhancement.
“It is well settled that a new statute is presumed to operate
prospectively absent an express declaration of retrospectivity or
a clear indication that the electorate, or the Legislature,
intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d
282, 287; see People v. Sandoval (2007) 41 Cal.4th 825, 845.)
The Penal Code provides that “[n]o part of it is retroactive,
unless expressly so declared.” (§ 3.)
      Defendant acknowledges that Senate Bill 1393 contained
no provision regarding retroactive application but relies on our
decision in In re Estrada (1965) 63 Cal.2d 740. Estrada
considered the retroactive application of a statutory amendment
that lessened punishment, identifying the issue as “one of trying
to ascertain the legislative intent—did the Legislature intend
the old or new statute to apply? Had the Legislature expressly
stated which statute should apply, its determination, either
way, would have been legal and constitutional.” (Id. at p. 744.)
Estrada concluded that, if no contrary indication exists, “When
the Legislature amends a statute so as to lessen the punishment
it has obviously expressly determined that its former penalty
was too severe and that a lighter punishment is proper as
punishment for the commission of the prohibited act. It is an
inevitable inference that the Legislature must have intended
that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it



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                        PEOPLE v. STAMPS
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constitutionally could apply. The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting
the defendant of the act is not final.” (Id. 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, quoting
People v. Conley (2016) 63 Cal.4th 646, 657.)
      We agree with defendant that, under Estrada, Senate Bill
1393 applies to his case retroactively because his judgment is
not yet final. Eliminating the prior restriction on the court’s
ability to strike a serious felony enhancement in furtherance of
justice constitutes an ameliorative change within the meaning
of Estrada. (Cf. People v. Superior Court (Lara) (2018) 4 Cal.5th
299, 308-309.) The Attorney General does not argue otherwise.
     C. The Proper Remedy
         1. Defendant’s Proposed Remedy
       Defendant contends the proper remedy is to remand to the
trial court to consider striking the serious felony enhancement
while otherwise maintaining the plea agreement intact. We
disagree. The Estrada rule only answers the question of
whether an amended statute should be applied retroactively. It
does not answer the question of how that statute should be
applied. Section 1385, subdivision (a) states in part that “[t]he
judge or magistrate may, either of his or her own motion or upon
the application of the prosecuting attorney, and in furtherance


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                         PEOPLE v. STAMPS
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of justice, order an action to be dismissed.” Section 1385,
subdivision (b)(1) provides that if a court “has the authority
pursuant to subdivision (a) to strike or dismiss an enhancement,
the court may instead strike the additional punishment for that
enhancement in the furtherance of justice . . . .” As noted,
Senate Bill 1393 removed provisions that prohibited a trial
court from striking a serious felony enhancement in furtherance
of justice under section 1385.
      If defendant stood convicted of a crime with an enhancing
prior as a result of trial or an open plea of guilty as charged, his
case could be remanded for the court to reconsider its sentence
in light of its newly conferred authority to strike the
enhancement. This case is procedurally different because both
parties entered a plea agreement for a specific prison term.
       Even when applicable, section 1385 ordinarily does not
authorize a trial court to exercise its discretion to strike in
contravention of a plea bargain for a specified term. Section
1192.5 allows a plea to “specify the punishment” and “the
exercise by the court thereafter of other powers legally available
to it,” and “[w]here the plea is accepted by the prosecuting
attorney in open court and is approved by the court, the
defendant, except as otherwise provided in this section, cannot
be sentenced on the plea to a punishment more severe than that
specified in the plea and the court may not proceed as to the plea
other than as specified in the plea.” (Italics added.)
      People v. Cunningham (1996) 49 Cal.App.4th 1044
addressed an analogous issue. There, the defendant claimed on
appeal that his case should be remanded to allow the court to
consider striking his prior strike conviction. People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, which was decided after


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Cunningham’s plea, clarified that a court retained such
discretion under section 1385. (Romero, at pp. 529-530.)
Cunningham declined to permit a remand for a sentence in
contravention to the plea bargain: “Here, defendant stipulated
that he would be sentenced to the 32-month term imposed by
the court. Defendant cites no authority, nor have we found any,
allowing a trial court to breach the bargain by striking the prior
to impose less than the 32 months agreed upon. ‘While no
bargain or agreement can divest the court of the sentencing
discretion it inherently possesses [citation], 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.” [Citations.] 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.” ’ ” (Cunningham, at p. 1047.)
       Even applying section 1385 as amended, long-standing
law limits the court’s unilateral authority to strike an
enhancement yet maintain other provisions of the plea bargain.
“Some potential for confusion appears in broad statements to
the effect that once a trial court has ‘accepted’ a plea bargain, it
too is ‘bound’ by it. . . . Taken out of context, they might suggest
that the court surrenders its sentencing discretion the moment
it accepts a negotiated plea. Such a view is of course
irreconcilable with the statute and cases . . . .               The
statements . . . are best understood as only prohibiting the court
from unilaterally modifying the terms of the bargain without


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affording . . . an opportunity to the aggrieved party to rescind
the plea agreement and resume proceedings where they left off.”
(People v. Kim (2011) 193 Cal.App.4th 1355, 1361 (Kim).)
      Thus, it is not enough for defendant to establish that the
amended section 1385 applies to him retroactively under
Estrada in order to receive the remedy he seeks. In order to
justify a remand for the court to consider striking his serious
felony enhancement while maintaining the remainder of his
bargain, defendant must establish not only that Senate Bill
1393 applies retroactively, but that, in enacting that provision,
the Legislature intended to overturn long-standing law that a
court cannot unilaterally modify an agreed-upon term by
striking portions of it under section 1385. We are not persuaded
that the Legislature intended this result.
      The Legislative Counsel’s Digest explained that Senate
Bill 1393 “would delete the restriction prohibiting a judge from
striking a prior serious felony conviction in connection with
imposition of the 5-year enhancement described above and
would make conforming changes.” (Legis. Counsel’s Dig., Sen.
Bill No. 1393 (2017-2018 Reg. Sess.).) The author of the bill
explained it was necessary because “ ‘[n]early 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. . . . 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.’ ” (Assem. Com. on Pub. Safety,

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Analysis of Sen. Bill No. 1393 (2017-2018 Reg. Sess.) as
amended May 9, 2018, pp. 1-2.) The author urged that
“ ‘[a]llowing judicial discretion is consistent with other sentence
enhancement laws and retains existing penalties for serious
crimes.’ ” (Id. at p. 2.) As defendant observes, the Assembly
Committee on Public Safety cited statistics showing that “as of
September 2016, 79.9% of prisoners . . . had some kind of
sentence enhancement; 25.5% had three or more.” (Id. at pp. 3-
4.) Another analysis suggested a prison cost savings of $15
million over five years if “100 defendants annually have the five-
year enhancement struck . . . .”              (Assem. Com. on
Appropriations, Analysis of Sen. Bill No. 1393 (2017-2018 Reg.
Sess.) as amended May 9, 2018, p. 1.)
       Defendant argues “[t]he legislative history therefore
demonstrates that the Legislature’s intent in enacting SB 1393
was to reduce prison overcrowding, save money, and achieve a
more just, individualized sentencing scheme.” The Legislature
may have intended to modify the sentencing scheme, but the
legislative history does not demonstrate any intent to overturn
existing law regarding a court’s lack of authority to unilaterally
modify a plea agreement. Indeed, none of the legislative history
materials mention plea agreements at all. What legislative
intent can be discerned runs counter to defendant’s position. As
described, Senate Bill 1393 was intended to bring a court’s
discretion to strike a five-year serious felony enhancement in
line with the court’s general discretion to strike other
enhancements. Thus, the Legislature gave a court the same
discretion to strike a serious felony enhancement that it retains
to strike any other sentence enhancing provision. Its action did
not operate to change well-settled law that a court lacks



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discretion to modify a plea agreement unless the parties agree
to the modification.
      Defendant relies on Harris v. Superior Court, supra, 1
Cal.5th 984 (Harris). Harris pled to felony grand theft (§ 487,
subd. (c)) and admitted a prior robbery conviction in exchange
for a six-year prison term and dismissal of a robbery count.
(Harris, at pp. 987-988.) After passage of Proposition 47, which
“reduced certain nonviolent crimes, including the grand theft
from the person conviction in this case, from felonies to
misdemeanors” (Harris, at p. 988), defendant petitioned to have
his theft conviction resentenced as a misdemeanor. (See
§ 1170.18, subd. (a).) The People argued the reduction violated
the plea agreement and sought to withdraw from the bargain.
Harris rejected the claim: “Critical to this question is the intent
behind Proposition 47. As we explained in Doe v. Harris, supra,
57 Cal.4th at page 66, entering into a plea agreement does not
insulate the parties ‘from changes in the law that the Legislature
has intended to apply to them.’ (Italics added.) Here, of course,
it was not the Legislature, but the electorate, that enacted
Proposition 47. So the question is whether the electorate
intended the change to apply to the parties to this plea
agreement. We conclude it did.” (Harris, at p. 991.) Noting that
section 1170.18, subdivision (a) specifically applied to a person
“serving a sentence for a conviction, whether by trial or plea,”
Harris reasoned that “[b]y expressly mentioning convictions by
plea, Proposition 47 contemplated relief to all eligible
defendants.” (Harris, at p. 991.) “The resentencing process that
Proposition 47 established would often prove meaningless if the
prosecution could respond to a successful resentencing petition
by withdrawing from an underlying plea agreement and
reinstating the original charges filed against the petitioner.”


                                 17
                         PEOPLE v. STAMPS
                  Opinion of the Court by Corrigan, J.


(Id. at p. 992.) In such cases, “ ‘the financial and social benefits
of Proposition 47 would not be realized, and the voters’ intent
and expectations would be frustrated.’ ” (Ibid.)
      Harris also found additional support from Doe, which
“stands for the proposition that ‘the Legislature [or here, the
electorate], for the public good and in furtherance of public
policy, and subject to the limitations imposed by the federal and
state Constitutions, has the authority to modify or invalidate
the terms of an agreement.’ [Citation.] 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, supra, 1 Cal.5th at p. 992.)
      Harris distinguished People v. Collins (1978) 21 Cal.3d
208 (Collins). Pursuant to a plea bargain, Collins pled guilty to
a single count of oral copulation under former section 288a in
exchange for dismissal of 14 other felony counts. Prior to
sentencing, the Legislature repealed former section 288a,
decriminalizing “the act of oral copulation between consenting,
nonprisoner adults . . . .” (Collins, at p. 211.) Collins reasoned
the decriminalization of oral copulation applied retroactively
under Estrada because the conviction was not yet final, and the
defendant could not be sentenced for that offense. (Collins, at
pp. 212-213.) However, Collins concluded the prosecution was
entitled on remand to reinstate the dismissed counts because,

                                  18
                        PEOPLE v. STAMPS
                 Opinion of the Court by Corrigan, J.


“[w]hen a defendant gains total relief from his vulnerability to
sentence, the state is substantially deprived of the benefits for
which it agreed to enter the bargain.” (Id. at p. 215.) Collins
reasoned: “Defendant seeks to gain relief from the sentence
imposed but otherwise leave the plea bargain intact. This is
bounty in excess of that to which he is entitled. The intervening
act of the Legislature in decriminalizing the conduct for which
he was convicted justifies a reversal of defendant’s conviction
and a direction that his conduct may not support further
criminal proceedings on that subject; but it also destroys a
fundamental assumption underlying the plea bargain—that
defendant would be vulnerable to a term of imprisonment. The
state may therefore seek to reestablish defendant’s vulnerability
by reviving the counts dismissed.” (Ibid.)
       Harris is distinguishable from the present case.
Proposition 47 reduced to misdemeanors certain theft and drug
offenses and created a mechanism to allow defendants to seek
relief under the new law, even though they had already been
sentenced. (See People v. DeHoyos (2018) 4 Cal.5th 594, 597-
599; § 1170.18.) The resentencing provision applied to those
“serving a sentence for a conviction, whether by trial or plea”
(§ 1170.18, subd. (a)) and drew “no express distinction between
persons serving final sentences and those serving nonfinal
sentences, instead entitling both categories of prisoners to
petition courts for recall of sentence.” (DeHoyos, at p. 603.) The
provision also allowed defendants who had already completed
their sentences to have their offenses designated as
misdemeanors. (§ 1170.18, subds. (f)-(h).) The electorate thus
evinced an intent that these offenses be treated as
misdemeanors no matter how or when a defendant suffered the
conviction. As Harris reasoned, to allow the prosecution, in


                                 19
                        PEOPLE v. STAMPS
                 Opinion of the Court by Corrigan, J.


response to a successful resentencing petition, to withdraw from
a plea agreement and reinstate dismissed charges would
frustrate electoral intent to treat these offenses uniformly as
misdemeanors, essentially denying meaningful relief to those
convicted through plea bargains. (See Harris, supra, 1 Cal.5th
at p. 992.)
      Similar considerations do not apply here. Nothing in the
language and legislative history of Senate Bill 1393 suggests an
intent to modify section 1192.5’s mandate that “the court may
not proceed as to the plea other than as specified in the plea”
without the consent of the parties. As discussed, Senate Bill
1393’s amendment of section 1385 now allows a trial court to
strike a serious felony enhancement just as it may do with any
other enhancement. Unlike in Harris, the remedy defendant
seeks, to allow the court to strike the serious felony
enhancement but otherwise retain the plea bargain, would
frustrate the Legislature’s intent to have section 1385 apply
uniformly, regardless of the type of enhancement at issue, by
granting the court a power it would otherwise lack for any other
enhancement. That Senate Bill 1393 is silent regarding pleas
and provides no express mechanism for relief undercuts any
suggestion that the Legislature intended to create special rules
for plea cases involving serious felony enhancements.
       Recently enacted Assembly Bill No. 1618 (2019-2020 Reg.
Sess.), cited by defendant, does not change this analysis. That
bill added section 1016.8, which codified our decision in Doe that
the circumstance “the parties enter into a plea agreement does
not have the effect of insulating them from changes in the law
that the Legislature has intended to apply to them” (§ 1016.8,
subd. (a)(1)), and clarified that any “provision of a plea bargain
that requires a defendant to generally waive future benefits of

                                 20
                         PEOPLE v. STAMPS
                  Opinion of the Court by Corrigan, J.


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)).
As we reasoned ante, we agree with defendant that Senate Bill
1393 should be applied retroactively to him, and the
circumstance that his conviction resulted from a plea agreement
did not change that conclusion. However, this bill, like Estrada,
says nothing about the proper remedy should we conclude a law
retroactively applies.
         2. Limited Remand Is Appropriate
       Although we reject defendant’s contention that the court
on remand should be allowed to exercise its discretion to reduce
his prison term by five years but otherwise maintain the plea
bargain, he is nevertheless entitled to some relief. The proper
remedy requires an examination of the court’s role in approving
a plea agreement. “The process of plea bargaining which has
received statutory and judicial authorization as an appropriate
method of disposing of criminal prosecutions 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 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 [citation], by the
People’s acceptance of a plea to a lesser offense than that
charged, either in degree [citations] or kind [citation], or by the
prosecutor’s dismissal of one or more counts of a multi-count
indictment or information. . . . But implicit in all of this is a
process of ‘bargaining’ between the adverse parties to the case—

                                  21
                        PEOPLE v. STAMPS
                 Opinion of the Court by Corrigan, J.


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.
Orin (1975) 13 Cal.3d 937, 942-943; see Collins, supra, 21 Cal.3d
at p. 214; § 1192.5.) “Judicial approval is an essential condition
precedent to the effectiveness of the ‘bargain’ worked out by the
defense and prosecution.” (Orin, at pp. 942-943; see People v.
Martin (2010) 51 Cal.4th 75, 79.)
       The statutory scheme contemplates that a court may
initially indicate its approval of an agreement at the time of the
plea but that “it may, at the time set for the hearing on the
application for probation or pronouncement of judgment,
withdraw its approval in the light of further consideration of the
matter . . . .” (§ 1192.5.) “The code expressly reserves to the
court the power to disapprove the plea agreement” up until
sentencing. (Kim, supra, 193 Cal.App.4th at p. 1361.) “In
exercising their discretion to approve or reject proposed plea
bargains, trial courts are charged with the protection and
promotion of the public’s interest in vigorous prosecution of the
accused, imposition of appropriate punishment, and protection
of victims of crimes. [Citation.] For that reason, a trial court’s
approval of a proposed plea bargain must represent an informed
decision in furtherance of the interests of society . . . .” (In re
Alvernaz (1992) 2 Cal.4th 924, 941.)
       “[T]he court, upon sentencing, has broad discretion to
withdraw its prior approval of a negotiated plea.” (People v.
Johnson (1974) 10 Cal.3d 868, 873.) “Generally, a trial court
may exercise its discretion to withdraw approval of a plea
bargain because: (1) it believes the agreement is ‘unfair’
[citation]; (2) new facts have come to light; (3) the court has
become more fully informed about the case; or (4) when, after

                                 22
                          PEOPLE v. STAMPS
                   Opinion of the Court by Corrigan, J.


further consideration, the court concludes that the agreement is
‘ “ ‘not in the best interests of society’ ” ’ [citation]. But this list
is not exhaustive.” (People v. Mora-Duran (2020) 45 Cal.App.5th
589, 595-596 (Mora-Duran).)
       Guided by these principles, People v. Ellis (2019) 43
Cal.App.5th 925 (Ellis) addressed the proper remedy in the
present context. Although Ellis agreed “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,” ’ ” the court reasoned “Senate Bill No. 1393
compels the conclusion that defendant is entitled to seek the
benefit of change in the law.” (Ellis, at pp. 943-944.) Ellis
initially observed that, on remand, “the trial court may simply
decline to exercise its discretion to strike the enhancement and
that will end the matter.” (Id. at p. 944.) “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.’ [Citations.] ‘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”


                                   23
                        PEOPLE v. STAMPS
                 Opinion of the Court by Corrigan, J.


others. [Citation.] Instead, the court must restore the parties
to the status quo ante.’ [Citations.] 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.” (Ibid., italics omitted.)
      Ellis rejected the People’s argument that a remand would
be futile “because the trial court accepted the plea bargain and
sentenced defendant to the stipulated sentence.” (Ellis, supra,
43 Cal.App.5th at p. 945.) After noting that the court, at the
time of sentencing, was unaware of its discretion to strike the
serious felony enhancement granted by Senate Bill 1393, Ellis
reasoned: “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. [Citations.] However, the record does not clearly
demonstrate that remand would be futile [citations], and the
parties’ plea bargain is not insulated from the changes in the
law effected by Senate Bill No. 1393.” (Ellis, at p. 946.) Ellis
concluded “defendant is entitled to a limited remand to allow
him the opportunity to request relief under Senate Bill No.
1393.” (Ibid.)
      We are persuaded by Ellis. At the time the court accepted
the plea agreement and sentenced defendant, the law did not
allow it to consider striking the serious felony enhancement in
furtherance of justice under section 1385. Senate Bill 1393
changed the law to allow such discretion, and we have now
concluded that provision applies retroactively. If he desires,

                                 24
                        PEOPLE v. STAMPS
                 Opinion of the Court by Corrigan, J.


defendant should be given the opportunity to seek the court’s
exercise of its section 1385 discretion. If the court on remand
declines to exercise its discretion under section 1385, that ends
the matter and defendant’s sentence stands.
      However, if the court is inclined to exercise its discretion,
as Ellis observed, such a determination would have
consequences to the plea agreement. For the reasons discussed
ante, the court is not authorized to unilaterally modify the plea
agreement by striking the serious felony enhancement but
otherwise keeping the remainder of the bargain. If the court
indicates an inclination to exercise its discretion under section
1385, the prosecution may, of course, agree to modify the
bargain to reflect the downward departure in the sentence such
exercise would entail. Barring such a modification agreement,
“the prosecutor is entitled to the same remedy as the
defendant—withdrawal of assent to the plea agreement . . . .”
(Kim, supra, 193 Cal.App.4th at p. 1362.)
      Further, the court may withdraw its prior approval of the
plea agreement. The court’s authority to withdraw its approval
of a plea agreement has been described as “near-plenary.”
(People v. Stringham (1988) 206 Cal.App.3d 184, 195; see Mora-
Duran, supra, 45 Cal.App.5th at p. 595.) The court’s exercise of
its new discretion to strike the serious felony enhancement,
whether considered a new circumstance in the case or simply a
reevaluation of the propriety of the bargain itself, would fall
within the court’s broad discretion to withdraw its prior
approval of the plea agreement. Section 1192.5 contemplates
that “[a] change of the court’s mind is thus always a possibility.”
(Stringham, at p. 194.)




                                 25
                         PEOPLE v. STAMPS
                  Opinion of the Court by Corrigan, J.


      In light of these potential consequences to the plea
agreement, we emphasize that it is ultimately defendant’s
choice whether he wishes to seek relief under Senate Bill 1393.
As Ellis reasoned: “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, 43 Cal.App.5th
at p. 944.) While it is true that defendant has consistently
argued on appeal that Senate Bill 1393 should retroactively
apply to him, his argument has always been coupled with his
claim that the proper remedy should be to simply allow the trial
court to reduce his sentence by five years while otherwise
maintaining the remainder of the plea agreement. Now that we
have rejected his proposed remedy, defendant’s calculus in
seeking relief under Senate Bill 1393 may have changed.
Defendant should be allowed to make an informed decision
whether to seek relief on remand.
       People v. Wilson (2019) 42 Cal.App.5th 408 (Wilson) came
to a contrary conclusion, reasoning a remand was not
warranted: “[A]ssume that a trial court acting in the here and
now, with the benefit of Senate Bill No. 1393, is presented with
a stipulated plea that includes a five-year term under section
667, subdivision (a)(1). This, of course, means that the
defendant has agreed to the five-year term. But let us indulge
the fanciful notion that the trial court refuses to take the plea if
it includes such a term because it would strike it. What would
then happen? The trial court could not modify the plea to reduce
it by five years. The trial court would have to reject the plea.


                                  26
                        PEOPLE v. STAMPS
                 Opinion of the Court by Corrigan, J.


The prosecution would then find another way to get to its
number, or the plea agreement would fall through. The point is
this: what the trial court thinks the number should be is largely
irrelevant, as this is not an open plea. A trial court must accept
the negotiated plea or reject the bargain outright, but it cannot
come up with its own number.” (Id. at p. 414.)
      Wilson’s reasoning misses the mark. It is settled that a
court may evaluate the fairness of a proposed sentence in
determining whether to approve the bargain. (See People v.
Segura (2008) 44 Cal.4th 921, 931.) In that regard, “what the
trial court thinks the number should be” is not irrelevant as
Wilson suggested. (Wilson, supra, 42 Cal.App.5th at p. 414.)
Further, it may not always be the case that the agreed-upon
sentence can be reconstituted with other offenses or
enhancements, and that, coupled with a court’s exercise of its
new found discretion to strike the serious felony enhancement,
may lead the court to reevaluate the fairness of the bargained-
for sentence. These new circumstances may also lead the
parties to reevaluate what constitutes a fair disposition of the
case. In any event, we agree with Ellis that short-circuiting this
process by refusing a limited remand “would be effectively
insulating the agreement from retroactive changes in the law,
in contravention of the law.”6 (Ellis, supra, 43 Cal.App.5th at p.
946.)




6
       We disapprove People v. Wilson, supra, 42 Cal.App.5th
408.


                                 27
                       PEOPLE v. STAMPS
                Opinion of the Court by Corrigan, J.


                      III. DISPOSITION
      The judgment of the Court of Appeal is reversed with
directions to remand the matter to the superior court to allow
defendant an opportunity to seek relief under Senate Bill 1393.


                                                       CORRIGAN, J.


We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                28
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Stamps
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XX 34 Cal.App.5th 117
Rehearing Granted

__________________________________________________________________________________

Opinion No. S255843
Date Filed: June 25, 2020
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: James P. Cramer

__________________________________________________________________________________

Counsel:

James S. Donnelly-Saalfield, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys
General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit, Eric D. Share, Elizabeth W.
Hereford and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

James S. Donnelly-Saalfield
First District Appellate Project
475 Fourteenth Street, Suite 650
(415) 495-3119

Elizabeth W. Hereford
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3801
