Opinion
H045811
02-20-2020
THE PEOPLE, Plaintiff and Respondent, v. KHAI DMITRI ASHFORD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1765950)
Pursuant to a plea agreement that stipulated to a nine-year prison sentence, appellant Khai Dmitri Ashford pleaded no contest to one count of assault with a deadly weapon and admitted a prior serious felony conviction. The trial court sentenced Ashford to the agreed-upon term of nine years, which included a five-year enhancement pursuant to Penal Code section 667, subdivision (a)(1). On appeal, Ashford contends the matter must be remanded for the trial court to exercise its discretion whether to strike the five-year enhancement pursuant to subsequently-enacted Senate Bill No. 1393 (Legis. Counsel's Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2 (hereafter Sen. Bill 1393).) We agree and remand for a new sentencing hearing.
I. FACTS AND PROCEDURAL BACKGROUND
The facts of Ashford's crimes are not relevant to this appeal. The Santa Clara County District Attorney's Office charged Ashford by information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) ; count 1). The information also alleged that Ashford had personally used a dangerous and deadly weapon, a bat, in the commission of the assault (§§ 667, 1192.7) and had suffered a prior strike conviction for a violent or serious felony (§§ 667, subds. (b)-(i), 1170.12), a conviction for a prior serious felony (§ 667, subd. (a)), and a prior felony conviction for which he had served a prison term (§ 667.5, subd. (b)).
Unspecified statutory references are to the Penal Code.
On February 21, 2018, Ashford pleaded no contest to the sole count of the information and admitted the allegation that he personally used a dangerous and deadly weapon. Ashford also admitted the strike prior and the serious felony prior. The prosecution dismissed the prison prior. The written plea agreement provided that Ashford would receive a sentence of nine years' imprisonment. The plea agreement did not contain any provision stating that the agreement would be unaffected by future statutory changes.
The plea agreement stated that the trial court had indicated the sentence of nine years. However, during the change-of-plea colloquy, the trial court told Ashford, "The maximum sentence potential is 13 years, but your agreement reached by the attorneys, you're going to receive no more and no less than nine years [sic]." The record does not further clarify whether the nine-year term resulted from a sentence indicated pre-plea by the trial court or instead constituted a sentence negotiated by the parties. For purpose of this appeal, we assume (without deciding) that the parties negotiated the nine-year sentence.
On April 9, 2018, the trial court sentenced Ashford to four years' imprisonment on count 1, with a consecutive term of five years for the serious felony prior, for an aggregate term of nine years' imprisonment. The trial court awarded him 501 days of custody credit and also assessed various fines and fees. At sentencing, the only statement the trial court made about the term of imprisonment was "This was a negotiated plea of nine years. [¶] Probation is denied. [¶] The defendant is committed to the California Department of Correction and Rehabilitation for nine years. [¶] The Court has reached the nine years in Count One, the mitigated term, of four, plus five for the [section] 667 prior. So it's a total of nine years."
On May 7, 2018, Ashford filed a notice of appeal but did not seek a certificate of probable cause. On June 18, 2019, this court granted Ashford's motion for leave to file a request for certificate of probable cause. On September 30, 2019, the trial court granted Ashford a certificate of probable cause.
II. DISCUSSION
A. Sen. Bill 1393 and the Parties' Contentions on Appeal
People v. Stamps (2019) 34 Cal.App.5th 117, review granted June 12, 2019, S255843 (Stamps), sets out the relevant statutory history. "At the time of defendant's sentencing, the trial court did not have discretion to strike an enhancement imposed under section 667, subdivision (a)(1). (Pen. Code, former § 1385, subd. (b) ['This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.']; Stats. 2014, ch. 137, § 1, eff. Jan. 1, 2015.) On September 30, 2018, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.) that, effective January 1, 2019, amended section 1385 to delete former subdivision (b) and give trial courts the discretion to dismiss five-year sentence enhancements under section 667, subdivision (a). (See Legis. Counsel's Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013 ['This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of [a] 5-year enhancement . . . .'].)" (Id. at p. 120.)
Ashford contends that this court should reverse the judgment and remand the matter for resentencing in light of Sen. Bill 1393 because the statute applies retroactively to his case, which is not yet final on appeal. He additionally contends that remanding his case for a new sentencing hearing would not violate the terms of his plea agreement, which contains no term stating it would be unaffected by future statutory changes.
The Attorney General agrees that Sen. Bill 1393 applies retroactively to cases not yet final on appeal but contends that Ashford is not entitled to resentencing in this matter. The Attorney General argues that, because Ashford received the specific sentence that he bargained for under the plea agreement, he "should not be allowed to try to better his bargain on appeal." The Attorney General also maintains that remand is unnecessary because the trial court's statements at sentencing demonstrate that it would have not dismissed the prior serious felony conviction even if it had the power to do so. The Attorney General does not cite any specific statements by the trial court in support of his position but asserts the record contains no indication the trial court felt the sentence was "undeserved."
The Attorney General also argued that this court should dismiss Ashford's appeal for failure to obtain a certificate of probable cause, which Ashford had not done when the Attorney General filed his brief. As Ashford has subsequently secured a certificate of probable cause, this issue is moot.
B. Analysis
Penal statutes are generally presumed to apply prospectively unless they expressly state otherwise. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 287; § 3.) However, under In re Estrada (1965) 63 Cal.2d 740 (Estrada), "an 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." (People v. Floyd (2003) 31 Cal.4th 179, 184 (Floyd), citing Estrada, at p. 744.) " 'The Estrada rule rests on an inference that, in the absence of contrary indications, 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. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 (Lara).)
Under these principles, "it is appropriate to infer, as a matter of statutory construction, that the Legislature intended Senate Bill 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when Senate Bill 1393 becomes effective on January 1, 2019." (People v. Garcia (2018) 28 Cal.App.5th 961, 973 (Garcia).) We therefore agree with both parties that Sen. Bill 1393 is an ameliorative statute that applies to individuals, like Ashford, who were sentenced before the legislation took effect but whose cases are not yet final on appeal. We next turn to whether application of Sen. Bill 1393 to Ashford would violate the terms of his plea agreement.
The California Supreme Court has made clear that applying statutory changes to the terms of a plea agreement does not violate the agreement unless the agreement explicitly provides that it will unaffected by changes to the law. "[A]s a general rule, . . . requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law." (Doe v. Harris (2013) 57 Cal.4th 64, 73-74.) In enacting a proposition with retroactive effect, "[t]he electorate may bind the People to a unilateral change in a sentence without affording them the option to rescind the plea agreement." (Harris v. Superior Court (2016) 1 Cal.5th 984, 992 (Harris).) "Under Doe and Harris, a plea agreement is deemed to incorporate subsequent changes in the law so long as those changes were intended by the Legislature or the electorate to apply to such a plea agreement." (People v. Baldivia (2018) 28 Cal.App.5th 1071, 1078 (Baldivia).)
As stated above, we must infer that Sen. Bill 1393 applies to all cases not yet final after the statute became effective because the Legislature did not make any express declarations about its retroactivity. (Garcia, supra, 28 Cal.App.5th at pp. 972-973; Estrada, supra, 63 Cal.2d at pp. 744-745; Lara, supra, 4 Cal.5th at pp. 307-308.) The California Supreme Court's recent cases examining the presumption of retroactivity have emphasized the broad sweep of the doctrine and the demanding standard required to overcome it. (See People v. Weaver (2019) 36 Cal.App.5th 1103, 1118.) Nothing in the text of Sen. Bill 1393 or in the current language of section 667, subdivision (a) or section 1385 distinguishes either the imposition or striking of the five-year enhancement for convictions by plea from those following a trial.
"Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." (§ 667, subd. (a)(1).)
"The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading. [¶] If the 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 in compliance with subdivision (a)." (§ 1385, subds. (a) & (b)(1).)
We do not agree with the decision in People v. Kelly (2019) 32 Cal.App.5th 1013, review granted June 12, 2019, S255145 (Kelly), which concludes that Sen. Bill 1393 does not apply to plea agreements that contain stipulated sentences. Kelly does not discuss the California Supreme Court's decisions in Doe and Harris at all. (Kelly, at p. 1017.) We are also unpersuaded by the decisions in People v. Fox (2019) 34 Cal.App.5th 1124, 1135 (Fox), People v. Galindo (2019) 35 Cal.App.5th 658, 670-673 (Galindo), People v. Williams (2019) 37 Cal.App.5th 602, 605, and People v. Wilson (2019) 42 Cal.App.5th 408, 413-414 (Wilson), which similarly state that retroactive statutory changes giving sentencing discretion to trial courts do not apply to plea agreements containing stipulated sentences.
Many of these cases also consider whether defendants whose sentences arose from plea agreements must first obtain a certificate of probable cause before raising on appeal the application of statutes that constitute an ameliorative, retroactive change in the law. (See Wilson, supra, 42 Cal.App.5th at p. 412 [discussing split of authority].) The California Supreme Court has granted review of this question. (See Issues Pending Before the California Supreme Court at https://www.courts.ca.gov/documents/FEB0720crimpend.pdf at p. 9 [as of Feb. 12, 2020], archived at: https://perma.cc/X7RS-L8A4 [describing the pending issue in Stamps as whether "a certificate of probable cause [is] required for a defendant to challenge a negotiated sentence based on a subsequent ameliorative, retroactive change in the law"].)
The court in Galindo did discuss Doe and Harris but distinguished those decisions on the ground that "the general legal principle that changes in the law are deemed incorporated into a plea bargain does not apply here, because the change in the law created by Senate Bill 1393 (allowing the court to exercise its sentencing discretion) does not affect defendant's plea, which stated a specific, agreed-upon sentence that had already been accepted and imposed by the trial court, not a sentence which granted the trial court discretion to select the sentence." (Galindo, supra, 35 Cal.App.5th at p. 670, italics omitted.) In Fox, the defendant sought a remand to permit the trial court to exercise the discretion to strike a firearm enhancement conferred by Senate Bill No. 620 (2017-2018 Reg. Sess.). (Fox, supra, 34 Cal.App.5th at p. 1127; Stats. 2017-2018, ch. 682, §§ 1, 2.) The court rejected the contention that "if a new law applies retroactively to defendants with nonfinal judgments, as Senate Bill No. 620 undisputedly does, this equates to the Legislature's intent that the change be incorporated into all plea agreements in cases where the judgment is not yet final." (Fox, at p. 1136.) The court in Fox observed that "defendants enter plea bargains all the time in which they give up the opportunity for the trial court to exercise its discretion in a way that might otherwise benefit them." (Id. at p. 1137.)
While this observation is certainly true, it cannot—by definition—apply to a situation where the ameliorative legislation was signed and went into effect months after the parties entered into the plea agreement. Those are the facts here, and the parties therefore negotiated Ashford's sentence without knowing that the trial court would have discretion to strike the five-year enhancement. In Ashford's case, the five-year term added by section 667, subdivision (a), significantly affects both the nine-year sentence actually imposed and Ashford's maximum exposure. If the trial court were to strike the enhancement, the maximum sentence Ashford could have received if he admitted all the charges and enhancements against him or if he were to go to trial with its possibility of acquittal was nine years—the same sentence provided for in the plea agreement. Although the plea agreement did not call for the trial court to exercise its discretion at sentencing, how the trial court would have exercised its discretion had the parties known the trial court possessed it would doubtlessly have affected the plea negotiations that led to Ashford's plea agreement and its stipulated sentence.
The nine-year figure in this hypothetical includes the prison prior allegation under section 667.5, subdivision (b), which the prosecution dismissed as part of the plea negotiations. However, Senate Bill No. 136 (2019-2020 Reg. Sess.), which took effect on January 1, 2020, would likely preclude altogether the application of the section 667.5, subdivision (b) allegation to Ashford, resulting in a maximum sentence of eight years if the trial court were to strike the five-year enhancement. (See People v. Lopez (2019) 42 Cal.App.5th 337, 342 [concluding Senate Bill No. 136 applies to all defendants whose judgments are not yet final as of January 1, 2020].) --------
We see no textual basis in Sen. Bill 1393 or in the logic of the presumption of retroactivity that supports the Attorney General's contention that only defendants who enter into plea agreements with stipulated sentences are precluded from the ameliorative benefits of the legislation. Ashford's position that the statute applies retroactively to him—as it equally does to other defendants whose convictions are not yet final—is more consistent with the presumption of retroactivity and legislative intent as elucidated by recent decisions of the California Supreme Court.
We therefore decide, as have a number of other courts of appeal, that application of ameliorative statutory changes such as Sen. Bill 1393 to a plea agreement with a stipulated sentence that was negotiated before the law went into effect in a case not yet final on appeal does not violate the plea agreement where the plea agreement contains no term precluding application of future legislative changes. (See, e.g., Stamps, supra, 34 Cal.App.5th at p. 123 [Sen. Bill 1393]; Baldivia, supra, 28 Cal.App.5th at pp. 1078-1079 [Proposition 57 and Senate Bill No. 620]; People v. Hurlic (2018) 25 Cal.App.5th 50, 57 [Senate Bill No. 620].) As Ashford's plea agreement contains no provision restricting it to the law in effect at the time the parties entered into it, application of Sen. Bill 1393 does not violate the agreement's terms.
We recognize that this conclusion benefits Ashford without allowing the People to withdraw from the plea agreement and thus potentially allows "Senate Bill No. 1393 [to be] a vehicle to allow [the defendant] to 'whittle down' his sentence but to otherwise leave the plea agreement intact." (See Wilson, supra, 42 Cal.App.5th at p. 415.) However, this result follows the California Supreme Court's decisions in Doe and Harris, and Harris produced a similarly asymmetric effect on a plea agreement. (See Harris, supra, 1 Cal.5th at pp. 992-993.) Of course, at Ashford's resentencing the trial court need not use its discretion to strike the section 667, subdivision (a)(1) enhancement; we observe only that it now has the discretion to do so.
We next turn to the Attorney General's argument that remand is unwarranted based on the trial court record. " '[W]hen the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.' " (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) However, "[w]e are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion." (People v. Jones (2019) 32 Cal.App.5th 267, 273.) Without a clear indication of the trial court's intent, remand is required. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
The sparse record here sheds little light on the trial court's assessment of the appropriate sentence in light of the gravity of Ashford's crimes and the significance of his criminal history. Indeed, at the sentencing hearing the trial court did not mention either factor at all and simply sentenced Ashford in conformity with the negotiated sentence. Under these circumstances, we cannot say the record clearly indicates what the trial court would have done had it known it had the discretion to strike the punishment for the prior conviction. Consequently, remand is appropriate for the trial court to exercise its discretion in the first instance. We express no opinion on how the trial court should do that.
III. DISPOSITION
The judgment is reversed and the matter is remanded to permit the trial court to determine whether to strike the enhancement pursuant to Penal Code section 667, subdivision (a)(1), and to resentence Ashford accordingly. In all other respects, the judgment is affirmed.
/s/_________
Danner, J. I CONCUR: /s/_________
Greenwood, P.J. Grover, J., Dissenting
I agree with the majority that Senate Bill No. 1393 applies to this nonfinal judgment, however I respectfully disagree that it has any practical effect. I believe the discretion granted by Senate Bill No. 1393 to decide whether to impose a previously mandatory prior conviction enhancement is superseded by a final plea agreement. "A written negotiated disposition, if approved by the trial court, binds the parties and the court. Once the trial court has accepted the terms of a negotiated plea that provides for a stipulated sentence, it lacks jurisdiction to alter the terms of the plea bargain to make it more favorable to the defendant." (People v. Kelly (2019) 32 Cal.App.5th 1013, 1017.)
Neither Doe v. Harris (2013) 57 Cal.4th 64 nor Harris v. Superior Court (2016) 1 Cal.5th 984 mandates a different result. Both held that the Legislature can retroactively alter the terms of a plea bargain (e.g., by changing the requirements for sex offender registration as in Doe v. Harris, or by making a felony offense a misdemeanor via Proposition 47 as in Harris v. Superior Court). But Senate Bill No. 1393 does not alter any term of the agreement defendant entered with the prosecution and the court. The legislation conferred on the trial court new discretion to be exercised generally in sentencing—not when there is already a binding plea agreement. As stated in People v. Galindo (2019) 35 Cal.App.5th 658, 671, "There is nothing in the language or legislative history of Senate Bill 1393 that suggests the Legislature intended to grant trial courts discretion to reduce stipulated sentences to which the prosecution and defense have already agreed in exchange for other promises. Neither the words of the statute itself nor the legislative history reference plea bargaining, nor do they express an intent to overrule existing law that once the parties agree to a specific sentence, the trial court is without power to change it unilaterally."
I recognize that if defendant had anticipated a change in the law creating the possibility of a more favorable sentencing structure, he might not have entered into the same agreement. But parties negotiate plea agreements based on the information available to them at the time. A change in circumstances after an agreement is entered does not itself render the plea agreement nonbinding, nor in my view does the nature of the change here create an entitlement to resentencing. I would affirm the judgment.
/s/_________
GROVER, J.