Filed 7/9/18
            CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION TWO


THE PEOPLE,                            B286082

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. TA137755)
       v.

DARYL GLEN HURLIC,

       Defendant and Appellant.

     APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael Shultz, Judge. Reversed and
remanded.

     Edward Mahler, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven E. Mercer, Acting Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.
                            ******

*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of Part II of the Discussion Section.
        As a general rule, a criminal defendant who enters a guilty
or no contest plea with an agreed-upon sentence may challenge
that sentence on appeal only if he or she first obtains a certificate
of probable cause from the trial court. (Pen. Code, § 1237.5, subd.
(a); 1 People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon);
People v. Cuevas (2008) 44 Cal.4th 374, 384 (Cuevas).) Does this
general rule apply when the defendant’s challenge to the agreed-
upon sentence is based on our Legislature’s enactment of a
statute that retroactively grants a trial court the discretion to
waive a sentencing enhancement that was mandatory at the time
it was incorporated into the agreed-upon sentence? We conclude
that the answer is “no,” and hold that a certificate of probable
cause is not required in these narrow circumstances. Because we
are unable to say that there is “no reasonable possibility” that the
trial court would decline to exercise its newfound sentencing
discretion, we vacate the judgment and remand for a new
sentencing hearing to decide whether to exercise that discretion.
          FACTS AND PROCEDURAL BACKGROUND
        The People charged Daryl Glen Hurlic (defendant) with
three counts of attempted premeditated murder (§§ 187, subd. (a)
& 664), and further alleged that those crimes were committed for
the benefit of, at the direction of, and in association with a
criminal street gang (§ 186.22, subd. (b)(1)(C), (4)) and involved a
principal’s personal and intentional use and discharge of a
firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)).
        In March 2017, defendant accepted the People’s offer of a
25-year prison sentence. In accepting this offer, defendant
(1) entered a no contest plea to a single count of attempted

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




                                 2
murder after the People struck the premeditation allegation as to
that count, and (2) admitted to a 20-year sentencing
enhancement for the personal discharge of a firearm under
section 12022.53, subdivision (c). 2 Defendant did not waive his
right to appeal.
       Six months later, in September 2017, the trial court
imposed the agreed-upon sentence of 25 years in prison and
dismissed the remaining two counts of attempted premeditated
murder.
       On October 11, 2017, the Governor signed Senate Bill No.
620 (2017-2018 Reg. Sess.) into law, effective January 1, 2018.
Senate Bill No. 620 amended section 12022.53 to grant trial
courts, for the first time, the discretion to strike section
12022.53’s firearm enhancements. (§ 12022.53, subd. (h), as
amended by Stats. 2017, ch. 682, § 2.)
       On Halloween 2017, defendant filed a timely notice of
appeal. He did not check the box on the first page indicating that
his appeal “challenge[d] the validity of the plea or admission,”
but, in the blank space where defendants are to spell out why
they are requesting a certificate of probable cause, defendant
wrote that he sought to avail himself of “the new Senate Bill
620.”
       No trial court issued a certificate of probable cause.




2     Although the trial court mistakenly described the
enhancement as premised on “[u]sing a firearm and causing great
bodily injury,” the court also repeatedly made clear that
defendant was admitting to a 20-year enhancement under section
12022.53, subdivision (c). Defendant does not assert that the
court’s misstatements in any way rendered the plea involuntary.




                                3
                             DISCUSSION
       Defendant argues that he is entitled to ask the trial court
to exercise its newfound discretion to strike the 20-year firearm
enhancement. The People respond that we may not entertain
defendant’s appeal because he did not obtain a certificate of
probable cause and that a remand for resentencing would in any
event be futile. The parties’ arguments accordingly present two
questions: (1) Is a certificate of probable cause required, and
(2) Would a remand for resentencing in this case be futile?
I.     Necessity for Certificate of Probable Cause
       A.      Certificates of probable cause, generally
       A defendant who seeks to appeal from a “judgment of
conviction” after entering a “plea of guilty or” no contest must
first (1) file with the trial court a sworn, written statement
“showing reasonable constitutional, jurisdictional, or other
grounds going to the legality of the proceedings,” and (2) obtain
from the trial court a certificate of probable cause attesting that
at least one of the defendant’s stated grounds “is not clearly
frivolous and vexatious.” (§ 1237.5; Cal. Rules of Court, rule
8.304(b); People v. Holland (1978) 23 Cal.3d 77, 84, original
italics; cf. People v. Arriaga (2014) 58 Cal.4th 950, 960 [certificate
of probable cause not required when defendant appeals an “‘order
made after judgment’”].)
       Consistent with its purpose of “discourag[ing] and
weed[ing] out frivolous or vexatious appeals” following a
defendant’s voluntary entry into a plea “‘in exchange for specified
benefits such as the dismissal of other counts or an agreed’”-upon
sentence (Panizzon, supra, 13 Cal.4th at pp. 75, 80; People
v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson)), the certificate
of probable cause requirement is aimed at (and consequently




                                  4
applies to) claims that operate “in substance [as] a challenge to
the validity of the plea” (Panizzon, at p. 76, original italics; People
v. McNight (1985) 171 Cal.App.3d 620, 624). “[T]he crucial
issue,” our Supreme Court has explained, “is what the defendant
is challenging, not the time or manner in which the challenge is
made.” (People v. Ribero (1971) 4 Cal.3d 55, 63.) In light of this
focus, the certificate of probable cause requirement does not
apply to claims “that arose after entry of the plea and do not
affect the plea’s validity” (Cal. Rules of Court, rule
8.304(b)(4)(B)), such as “issues regarding” post-plea “proceedings
held . . . for the purpose of determining the degree of the crime
and the penalty to be imposed.” (Panizzon, at p. 74; Johnson,
at pp. 676-677; People v. Ward (1967) 66 Cal.2d 571, 574.) Our
Legislature has also expressly carved out appeals challenging
search and seizure rulings. (§ 1538.5, subd. (m); Cal. Rules of
Court, rule 8.304(b)(4)(A).)
       The question presented in this case regarding the necessity
of a certificate of probable cause lies at the intersection of two
lines of authority. Reconciling them is a question of law we
decide de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
       The first line of authority involves the law interpreting the
certificate of probable cause requirement in section 1237.5. This
body of law draws a line between pleas in which the parties agree
that the court will impose a specific, agreed-upon sentence, and
pleas in which the parties agree that the court may impose any
sentence at or below an agreed-upon maximum. A certificate of
probable cause is required for the former (Cuevas, supra,
44 Cal.4th at pp. 381-382; Panizzon, supra, 13 Cal.4th at pp. 78-
80; see generally Johnson, supra, 47 Cal.4th at p. 678), but not
the latter (except where the defendant challenges the legal




                                  5
validity of the maximum sentence itself) (People v. French (2008)
43 Cal.4th 36, 45-46; People v. Buttram (2003) 30 Cal.4th 773,
777, 790-791; cf. People v. Shelton (2006) 37 Cal.4th 759, 763
(Shelton) [certificate of probable cause required to challenge
validity of agreed-upon maximum sentence under section 654]).
This differential treatment flows directly from the substance of
the parties’ agreement: Where the parties agree to a specific
sentence, the court’s “[a]cceptance of the agreement binds the
court and the parties to the agreement” (People v. Segura (2008)
44 Cal.4th 921, 930 (Segura)), and a defendant’s challenge to the
specific sentence is “in substance a challenge to the validity of the
plea” (Panizzon, at p. 76, original italics). But where the parties
agree to any sentence at or beneath an agreed-upon maximum,
that “agreement, by its nature, contemplates that the court will
choose from among a range of permissible sentences within the
maximum, and that abuses of this discretionary sentencing
authority” do not attack the validity of the plea and “will be
reviewable on appeal” without a certificate of probable cause.
(Buttram, at pp. 790-791.) Because the parties in this case
agreed to a specific, 25-year prison sentence, this line of authority
suggests that appellate review is permissible only if defendant
first obtains a certificate of probable cause.
       The second line of authority involves the law governing the
retroactivity of new criminal statutes. Although new criminal
statutes are presumed to operate prospectively (§ 3), that
presumption is rebuttable: Our Legislature or the voters may
“expressly . . . declare[]” an intent to apply the new law
retroactively (ibid.); and, absent an express indication to the
contrary, courts will infer an intent to apply a new law
retroactively to all nonfinal convictions where that new law




                                 6
“mitigat[es]” or “lessens” “the punishment for a particular
criminal offense” (People v. Brown (2012) 54 Cal.4th 314, 324;
In re Estrada (1965) 63 Cal.2d 740, 744-745). A new law
mitigates or lessens punishment when it either mandates
reduction of a sentence or grants a trial court the discretion to do
so. (People v. Francis (1969) 71 Cal.2d 66, 75-78.) Applying this
body of law, the courts have unanimously concluded that Senate
Bill No. 620’s grant of discretion to strike firearm enhancements
under section 12022.53 applies retroactively to all nonfinal
convictions. (People v. Billingsley (2018) 22 Cal.App.5th 1076,
1079-1080 (Billingsley); People v. Arredondo (2018) 21
Cal.App.5th 493, 506-507; People v. Watts (2018) 22 Cal.App.5th
102, 119-120; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-
1091; People v. Robbins (2018) 19 Cal.App.5th 660, 679.) This
line of authority suggests defendant is entitled to have the trial
court exercise its discretion under Senate Bill No. 620.
       So which line of authority prevails? We conclude that the
authority regarding retroactivity trumps, and we do so for three
reasons.
       First, plea agreements are, at bottom, “a form of contract,”
and their terms, like the terms of any contract, are to be enforced.
(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




                                 7
good and in pursuance of public policy.”’” (Doe v. Harris (2013)
57 Cal.4th 64, 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.’” (Harris v. Superior Court (2016)
1 Cal.5th 984, 991, quoting Doe v. Harris, at pp. 73-74.) Because
defendant’s plea agreement does not contain a term incorporating
only the law in existence at the time of execution, defendant’s
plea agreement will be “deemed to incorporate” the subsequent
enactment of Senate Bill No. 620, and thus give defendant the
benefit of its provisions without calling into question the validity
of the plea. 3 What is more, because Senate Bill No. 620 grants
the trial court at most the discretion to strike the 20-year firearm
enhancement and leaves the five-year attempted murder
sentence intact, the trial court may end up reimposing the
originally agreed-upon 25-year prison sentence; but even if it
does not, a resentencing under Senate Bill No. 620 still does not
“eviscerate[] . . . the plea bargain” in this case, and thus, the
People may not seek to set aside the plea. (Harris v. Superior
Court, at p. 993.)
       Second, dispensing with the certificate of probable cause
requirement in the circumstances present here better implements
the intent behind that requirement. Although the requirement is

3      Because defendant’s plea agreement was negotiated and
fully executed prior to Senate Bill No. 620 becoming law on
October 11, 2017, we have no occasion to address whether a
defendant whose plea agreement was negotiated while Senate
Bill No. 620 was already part of the legal landscape must obtain
a certificate of probable cause. (See People v. Enlow (1998)
64 Cal.App.4th 850, 853-854 (Enlow).)




                                 8
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 v. Superior Court, supra,
1 Cal.5th at p. 992; 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 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.
       Third, the rules of statutory construction favor application
of Senate Bill No. 620 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.




                                 9
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.
       In resisting this conclusion, the People cite Enlow, supra,
64 Cal.App.4th 850. In Enlow, the defendant entered a plea with
an agreed-upon sentence calculated in part under a statute that
dictated a temporarily elevated sentence would “sunset” to a
lower penalty the next year. (Id. at pp. 852-853.) Enlow held on
the merits that the defendant was not entitled to be resentenced
under the post-“sunset” version of the statute (id. at p. 855), and
also held that his appeal was procedurally improper because he
did not obtain a certificate of probable cause (id. at pp. 853-854).
Enlow is both distinguishable and unpersuasive. It 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. Senate Bill No. 620 did not become
law until after defendant’s plea agreement was negotiated and
executed. Enlow is also unpersuasive insofar as it does not make
any effort to reconcile section 1237.5 with the second line of
authority involving the retroactive application of new laws
ameliorating criminal sentences.




                                10
       For these reasons, defendant was not required to obtain a
certificate of probable cause.
II.    Futility of Remand for Resentencing
       Although Senate Bill No. 620 retroactively applies to all
defendants whose convictions are final, not all defendants are
entitled to a remand for resentencing. A remand is required,
however, unless the record from the initial sentencing “‘clearly
indicate[s]’ the [trial] court would not have exercised discretion to
strike the firearm allegations had the court known it had that
discretion.” (Billingsley, supra, 22 Cal.App.5th at p. 1081.) Put
differently, a remand is called for unless the trial court expressly
and specifically speaks to how it would have hypothetically
exercised a discretion it did not have at the time. Here, the trial
court did not say anything about whether it might strike the
firearm enhancement, let alone clearly indicate that it would not.
Thus, defendant is entitled to a remand.
                            DISPOSITION
       The judgment is vacated, and the case remanded to the
trial court to exercise its discretion whether to lessen defendant’s
sentence pursuant to amended section 12022.53, subd. (h).
       CERTIFIED FOR PARTIAL PUBLICATION.


                                      ______________________, J.
                                      HOFFSTADT
We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST




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