Opinion
C092892
04-25-2022
THE PEOPLE, Plaintiff and Respondent, v. DAVID WILLIAM BILDERBACK, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 17F7160)
DUARTE, J.
Defendant David William Bilderback pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a)), and admitted he personally used a firearm (§ 12022.5, subd. (a)). Defendant then appealed, asserting the trial court abused its discretion in imposing the upper term sentence on the manslaughter count. After the parties' initial briefing was complete, we granted defendant's request for supplemental briefing on the effect, if any, of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill No. 567) on his case.
Undesignated statutory references are to the Penal Code.
Defendant's initial contention was barred by his waiver of his right to appeal and his failure to obtain a certificate of probable cause, and, in any event, is ultimately rendered moot. As we shall explain, despite his waiver of his right to appeal and failure to obtain a certificate of probable cause, defendant's contentions concerning Senate Bill No. 567 are properly before us. As defendant and the Attorney General agree, Senate Bill No. 567 applies retroactively to defendant's case. Contrary to the Attorney General's contention, although we acknowledge that this legislation did not exist for the trial court to follow at the time of defendant's sentencing, we cannot conclude the court's failure to comply with the provisions enacted by Senate Bill No. 567 in sentencing defendant to the upper term was harmless on this record. Accordingly, we must remand for resentencing.
BACKGROUND
The facts of defendant's crime are not relevant to the issues on appeal. It suffices to say that he shot and killed his adult son with a shotgun. He was charged with murder and multiple other crimes, and ultimately pleaded guilty to voluntary manslaughter and admitted personal use of a firearm. On the plea form, defendant agreed he would serve between six and 16 years in prison. In the section titled "Other Terms," defendant agreed he would "waive appeal at sentencing." During plea proceedings, defense counsel indicated defendant understood the plea agreement was for a sentence of six to 16 years, and the prosecution clarified, "the defendant will also be waiving his appellate rights at sentencing, so long as he is sentenced within the confines of this contract of this plea that he is entering today he would waive appeal at that time." Defense counsel confirmed that this was defendant's understanding. The trial court then confirmed this directly with defendant, asking, "[D]o you also understand that assuming that the court stays within the boundaries of the agreement six and sixteen years that you are going to be waiving your right to appeal the court's decision?" Defendant responded, "Yes."
At sentencing, the prosecutor again stated defendant "was going to waive appeal as long as this court sentenced him to within the range of the bargain which was 6 to 16. So as long as the Court intends to sentence within that range the agreement was he would waive appeal." The trial court responded: "All right. I will tell you I am going to sentence him within the range." The court then addressed defendant: "It is my understanding as part of this plea bargain that you agree to waive any right you may have to an appeal. I always try to explain this in the same way that is ultimately in every case there could be some reason that you might have. I don't have any understanding or knowledge what that might be, but typically there is something that you might decide is appealable. My understanding is part of this plea bargain for you to take advantage you have to waive any right you have to an appeal. Are you going to waive that right?" Defendant responded, "As I believe it was my understanding that I had to waive that right to appeal to get the plea bargain." The court responded: "Fair enough. But do you waive your right to appeal?" Defendant responded, "Yes."
The trial court imposed the upper term of 11 years for voluntary manslaughter and the midterm of four years for the personal use of a firearm enhancement, for an aggregate term of 15 years in prison.
Defendant appealed, but he did not obtain a certificate of probable cause. The appeal was fully briefed on August 27, 2021, and assigned to this panel on October 4, 2021. On January 4, 2022, we granted defendant's request to file a supplemental brief on the effect, if any, of Senate Bill No. 567 on his case. Supplemental briefing was completed on February 22, 2022. The parties waived argument and the case was deemed submitted on April 1, 2022.
DISCUSSION
I Defendant's Initial Appeal
In his original briefing, defendant asserts the trial court abused its discretion in imposing the upper term sentence on his manslaughter conviction. He did not obtain a certificate of probable cause, but argues he does not need one because the California Rules of Court set forth "an exception from this requirement where 'the grounds arose after entry of the plea and do not affect the plea's validity.'" (See Cal. Rules of Court, former rule 8.304(b)(4)(B); see also rule 8.304(b)(2)(B).) He also argues his contention did not fall within the scope of his appellate waiver.
"No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." (§ 1237.5; see Cal. Rules of Court, rule 8.304(b).)
Two types of issues may be raised on appeal where a defendant has entered a guilty or no contest plea even in the absence of a certificate of probable cause: "(1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon); accord People v. Stamps (2020) 9 Cal.5th 685, 694 (Stamps).)
"In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.] Hence, the 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 requirements of section 1237.5." (Panizzon, supra, 13 Cal.4th at p. 76; accord, Stamps, supra, 9 Cal.5th at p. 694.) "Even when a defendant purports to challenge only the sentence imposed, a certificate of probable cause 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; accord, Stamps, at p. 694.)" '[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' and thus requires a certificate of probable cause." (People v. Shelton (2006) 37 Cal.4th 759, 766, quoting Panizzon, at p. 79.)
Additionally, in Panizzon, supra, 13 Cal.4th 68, our Supreme Court held a criminal defendant could expressly waive the right to appeal as long as the waiver was knowing, intelligent, and voluntary. (Id. at p. 80.) "When a defendant waives the right to appeal as part of a plea agreement, and the waiver's terms encompass the issue the defendant wishes to raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the appeal." (People v. Espinoza (2018) 22 Cal.App.5th 794, 803.)
Here, defendant agreed at sentencing to waive his right to appeal provided his sentence was between six and 16 years. Defendant's claim in his original briefing that the trial court abused its discretion in imposing the upper term sentence for manslaughter is well within the terms of his appellate waiver, which expressly addressed the length of his sentence and which waived his right to appeal any aspect of the judgment if he was sentenced to between six and 16 years. The trial court sentenced defendant to 15 years in prison, a sentence contemplated by the plea agreement and the waiver. The length of his sentence and his right to appeal that sentence fall squarely within the agreement and within defendant's contemplation and knowledge at the time the waiver was entered. As defendant's claim falls within the terms of the plea and waiver, any argument he did not knowingly, intelligently, and voluntarily agree to waive the alleged future error in the court's imposition of a sentence within the contemplated range is a challenge to the enforceability of the plea itself and is not cognizable due to his failure to obtain a certificate of probable cause. (See People v. Becerra (2019) 32 Cal.App.5th 178, 191-192.)
While this would ordinarily result in the dismissal of the appeal, defendant's initial contentions have been rendered moot by the enactment of Senate Bill No. 567 and the issues raised in supplemental briefing.
II Senate Bill No. 567
While this appeal was pending, the Governor signed Senate Bill No. 567, effective January 1, 2022, which made changes affecting trial court sentencing discretion. In supplemental briefing, defendant asserts that Senate Bill No. 567 applies to his case and that the matter must be remanded for resentencing.
Preliminarily, we note that the Attorney General does not raise defendant's waiver of his right to appeal or his failure to obtain a certificate of probable cause in the supplemental response brief. It is not clear whether the Attorney General intends to abandon the arguments that defendant's appeal is foreclosed by his appellate waiver and his failure to obtain a certificate of probable cause, or if he simply chooses not to argue these points with regard to defendant's claims made pursuant to Senate Bill No. 567. In any event, we conclude defendant's supplemental claim is not foreclosed by his waiver of his right to appeal or his failure to obtain a certificate of probable cause, for reasons we now explain.
A general waiver of the right to appeal, such as the one executed here, "does not preclude an appeal from an unforeseen error that occurs after the waiver is entered because such a waiver is not knowing and intelligent. [Citations.] The same rule applies where the 'error' is a ruling contravened by a subsequent change in law. While we construe plea agreements according to general contract principles, a plea is generally 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. [Citation.] '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.'" (People v. Castellanos (2020) 51 Cal.App.5th 267, 272.) Defendant's waiver could not be knowing, intelligent, and voluntary as to the changes effected by Senate Bill No. 567, as those changes took place after defendant's plea, after he executed his waiver, and after the court imposed sentence.
Similarly, in Stamps, supra, 9 Cal.5th at page 696, our Supreme Court held: "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." The court concluded: "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 of probable cause." (Id. at p. 698.)
As for Senate Bill No. 567's application to defendant's case, generally, a penal statute does not apply retroactively unless the legislation expressly states its retroactive effect. (§ 3.) There is an exception to this general rule for statutes reducing criminal punishment which, absent a legislative statement to the contrary, apply retroactively to all cases that were not final when the legislation takes effect. (See In re Estrada (1965) 63 Cal.2d 740, 744.) Under Estrada, "when the Legislature enacts a law ameliorating punishment without including an express savings clause or a similar indicator of its intent to apply the law prospectively only, we infer an intent 'that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.' [Citation.] In this category we included cases in which the criminal act was committed before the statute's passage, so long as the judgment is not yet final. [Citation.] Thus, under Estrada,' "[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent." '" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting Estrada, at p. 745 & People v. DeHoyos (2018) 4 Cal.5th 594, 600.) Nothing in Senate Bill No. 567 suggests a legislative intent that the amendments apply prospectively only. Defendant and the Attorney General agree, as do we, that Senate Bill No. 567 applies retroactively to defendant's case.
As relevant here, Senate Bill No. 567 generally limits the trial court's ability to impose the upper term sentence unless aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or by the court in a court trial. (§ 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) An exception to this general rule is evidence of the defendant's prior convictions established by certified records of conviction, which need not be submitted to a jury. (Id., subd. (b)(3).)
The trial court sentenced defendant to the upper term of 11 years for voluntary manslaughter. (See §§ 192, 193, subd. (a).) However, no factor in aggravation supporting the upper term sentence was stipulated by defendant or found true beyond a reasonable doubt by a jury or by the court in a court trial. (See § 1170, subd. (b)(2), added by Stats. 2021, ch. 731, § 1.3.)
The Attorney General asserts that the failure to comply with Senate Bill No. 567 was harmless beyond a reasonable doubt." '[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury,' the error is harmless." (People v. Flores (2022) 75 Cal.App.5th 495 [holding error in imposing upper term following enactment of Senate Bill No. 567 harmless beyond a reasonable doubt], quoting People v. Sandoval (2007) 41 Cal.4th 825, 839; see also People v. Osband (1996) 13 Cal.4th 622, 728 [single aggravating factor is sufficient to support an upper term].)
The aggravating circumstances advanced by the Attorney General generally are not among those circumstances set forth in California Rules of Court, rule 4.421. Nor do those circumstances in aggravation relate to prior crimes which would be provable through certified records without submission to a jury. (See generally § 1170, subd. (b)(3); cf. People v. Flores, supra, 75 Cal.App.5th at p. 501 ["Flores's probation report, which the court reviewed and considered, identified his five sustained juvenile delinquency petitions and numerous convictions, including battery, as an adult- information that is readily available from official records"].) Additionally, given defendant was convicted upon his plea of guilty, we do not have the benefit of a trial record supporting the circumstances in aggravation raised by the Attorney General. On this record, we cannot conclude the Attorney General has demonstrated, beyond a reasonable doubt, that a hypothetical trier of fact, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least one of the aggravating circumstances advanced by the Attorney General had the aggravating circumstances been submitted to the trier of fact. Further, we cannot say that with the benefit of the new limitation of imposition of the upper term, a finding of one aggravating factor would have been sufficient to satisfy the new law's requirements in that regard.
Accordingly, the matter must be remanded for resentencing.
DISPOSITION
The matter is remanded for resentencing in compliance with section 1170 as amended by Senate Bill No. 567. The appeal is otherwise dismissed.
We concur: Raye, P. J., Hoch, J.