Opinion
C083663
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. JIMMY CHAVEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F08377) OPINION AFTER RECALL OF REMITTITUR
This appeal originally came to us pursuant to People v. Wende (1979) 25 Cal.3d 436. After consideration of the briefing and undertaking an examination of the entire record pursuant to Wende, we affirmed defendant's conviction and sentence, which resulted from a plea bargain to a stipulated 12-year state prison term, including a 10-year mandatory enhancement for personal use of a firearm (Pen. Code, § 12022.53, subd. (b)). (People v. Chavez (Aug. 8, 2017, C083663) [nonpub. opn.].) Our remittitur issued October 11, 2017.
Undesignated statutory references are to the Penal Code. --------
Defendant requested that we recall the remittitur and allow him to file a supplemental brief raising the issue of whether his case should be remanded to the superior court for that court to consider whether to strike the firearm use enhancement in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (hereafter Senate Bill 620), which gave trial courts discretion to strike such enhancements effective January 1, 2018 (Stats. 2017, ch. 682, § 2). We granted defendant's request.
Having considered defendant's supplemental brief and the Attorney General's response thereto, we conclude that defendant's claim is not reviewable because he did not obtain a certificate of probable cause and the stipulated sentence, including the firearm use enhancement, was an integral part of the plea agreement. We affirm the judgment without prejudice to the filing of a petition for writ of habeas corpus in the trial court raising the question of the applicability of Senate Bill 620 (Stats. 2017, ch. 682, § 2), effective January 1, 2018, to defendant's no contest plea.
FACTUAL AND PROCEDURAL BACKGROUND
A felony complaint deemed an information charged defendant with two counts of robbery. (§ 211.) As to both counts, it was alleged that defendant personally used a firearm. (§ 12022.53, subd. (b).) As alleged, defendant faced a maximum sentence in excess of 20 years.
Following the denial of defendant's motion to suppress evidence (§ 1538.5), defendant entered a plea of no contest to count 1, admitted the firearm use allegation, and admitted that the offense was a serious felony and a strike, in return for the dismissal of the balance of the charging document and a stipulated state prison sentence of 12 years (two years, the low term, on count 1, plus 10 years on the enhancement).
The prosecutor stated the factual basis of the plea as follows: "On or about December 22nd, 2014, here in the County of Sacramento, [defendant] committed a felony violation of Penal Code Section 211, robbery in the second degree, in that [defendant] did unlawfully and by means of force and fear take the personal property from the person . . . and immediate possession of [K.J.] [¶] Additionally, in the process of that robbery [defendant] personally used a firearm, to wit, a handgun, within the meaning of Penal Code Section 12022.53[, subdivision] (b). [¶] In particular, on that day [defendant] set up to buy two cell phones at a Raley's in Elk Grove. When he arrived there he drew and exhibited a firearm and demanded the cell phone from [K.J.] He obtained the cell phone. [¶] The car was stopped later in Elk Grove where [defendant] was identified as having that gun. [K.J.] arrived on scene and identified [defendant] as the robber, and the gun was recovered."
The trial court thereafter imposed the stipulated 12-year state prison sentence. The court awarded defendant 437 days of presentence custody credit (380 actual days and 57 conduct days). The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended parole revocation restitution fine (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373).
Defendant filed timely notice of appeal. He did not obtain a certificate of probable cause. (§ 1237.5, subd. (b).)
DISCUSSION
In his supplemental brief, defendant contends he is entitled to remand for resentencing under Senate Bill 620 in light of the retroactivity rule set out in In re Estrada (1965) 63 Cal.2d 740 (cf. People v. Brown (2012) 54 Cal.4th 314, 323; People v. Nasalga (1996) 12 Cal.4th 784, 792; People v. Francis (1969) 71 Cal.2d 66, 76) because his conviction was not yet final on the statute's operative date and the record does not clearly show the trial court would not exercise discretion to strike the firearm enhancement on remand (People v. Gamble (2008) 164 Cal.App.4th 891, 901).
The Attorney General concedes that Senate Bill 620 applies to defendant, but asserts that defendant is not entitled to remand because he did not obtain a certificate of probable cause, and his plea agreement was for a stipulated 12-year sentence of which the 10-year firearm enhancement was an integral part. We agree with the Attorney General.
Because defendant did not obtain a certificate of probable cause, he cannot raise issues underlying his no contest plea on appeal. (See People v. Panizzon (1996) 13 Cal.4th 68, 76-79 (Panizzon).) This rule also applies to challenges to stipulated sentences which were "an integral part of the plea bargain." (People v. Enlow (1998) 64 Cal.App.4th 850, 853-854, citing Panizzon, supra, at p. 78.) Instead, defendant's appeal is limited to "postplea claims, including sentencing issues, that do not challenge the validity of the plea." (People v. Cuevas (2008) 44 Cal.4th 374, 379.)
In exchange for defendant's plea, the People dismissed a second robbery charge and struck a second firearm enhancement allegation. The parties agreed to a specified aggregate sentence and the calculations that supported it. Thus, as in Panizzon and Enlow, the stipulated sentence—including the firearm enhancement, which constituted five-sixths of it—was an integral part of the plea.
Although the legislative changes made by Senate Bill 620 would allow the trial court to strike the firearm enhancement, they did not make defendant's sentence unlawful. Therefore, defendant's challenge to the enhancement cannot be heard without a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 78.)
At oral argument, defendant relied on the recent opinion People v. Hurlic (2018) 25 Cal.App.5th 50, 53, in which the Second Appellate District, Division Two, dispensed with the certificate of probable cause requirement in "narrow circumstances" such as those present here (id. at pp. 53, 59). We agree Hurlic offers a practical way to resolve the dilemma that arises "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." (Hurlic, at p. 53.) But we adhere to the jurisdictional requirement for a certificate of probable cause even when the law changes to the defendant's benefit after the defendant has entered into the plea agreement. Rather than remand for defendant to seek a certificate of probable cause at this juncture, we believe the appropriate remedy in this circumstance is to affirm the judgment without prejudice to defendant's filing of a petition for writ of habeas corpus in the trial court raising the question of the applicability of Senate Bill 620 to defendant's no contest plea. (People v. Harris (2018) 22 Cal.App.5th 657, 662.)
DISPOSITION
The judgment is affirmed without prejudice to the filing of a petition for writ of habeas corpus in the trial court raising the question of applicability of Senate Bill 620 (Stats. 2017, ch. 682, § 2) to defendant's no contest plea.
BUTZ, J. We concur: ROBIE, Acting P. J. DUARTE, J.