P. v. Espana

Filed 7/11/19 P. v. Espana CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO ANGEL ESPANA,
Defendant and Appellant.
H046062
(Santa Clara County
Super. Ct. No. C1361295)
In 2016, defendant Ricardo Angel Espana pleaded no contest to attempted murder
(Pen. Code, §§ 664, subd. (a), 187),1 shooting at an inhabited dwelling (§ 246), and
assault with a firearm (§ 245, subd. (a)(2)). Defendant admitted two firearm
enhancements (§ 12022.53, subds. (a), (b)) and a prior serious felony conviction
enhancement (§ 667, subd. (a)). In March 2018, the trial court sentenced defendant to the
agreed-upon term of 34 years eight months in prison. The trial court denied defendant’s
request for a certificate of probable cause.
On appeal, defendant argues that we should reverse the judgment and remand the
matter back to the trial court so that it may exercise its discretion to dismiss his firearm or
prior serious felony conviction enhancements in light of Senate Bill Nos. 620 and 1393.
As we explain, we agree and reverse the judgment.
1 Unspecified statutory references are to the Penal Code.

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BACKGROUND
1. The Crimes2
On June 13, 2013, San Jose Police Department officers responded to a drive-by
shooting. The victim, who suffered a broken nose, chipped tooth, and a pellet through his
right eye, told officers that he was shot by several suspects driving a black vehicle. Prior
to the shooting, the victim heard the suspects shout “Norte.”
That same evening, officers responded to another shooting. The victim told
officers that he was seated in his car when suspects in a dark-colored car pulled up next
to him and shot twice into his car. A car matching the description of the suspects’ car
was found on a nearby freeway, and defendant was identified as the driver. Defendant
and another man, his codefendant, were arrested following a high-speed chase. Both
defendant and his codefendant were identified as active members of the Norteño criminal
street gang.
2. The Plea Agreement
On September 14, 2016, defendant completed an advisement of rights, waiver, and
plea form. Defendant agreed to plead no contest to attempted murder (§§ 664, subd. (a),
187), shooting at an inhabited dwelling (§ 246), and assault with a firearm (§ 245,
subd. (a)(2)). In connection with the count of attempted murder, defendant admitted a
firearm enhancement (§ 12022.53, subd. (b)) and a gang enhancement (§ 186.22,
subd. (b)(1)(C)). In connection with the counts of shooting into an inhabited dwelling
and assault with a firearm, defendant admitted a firearm enhancement (§ 12022.5,
subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)). Defendant also admitted
he had a prior strike and a prior serious felony conviction. In exchange, defendant agreed
2 Since defendant pleaded no contest, we derive our summary of the offense from
the probation officer’s report, which was based on a report prepared by the San Jose
Police Department.

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to a sentence of 34 years eight months if the trial court granted his Romero3 motion, or
35 years if the trial court did not grant his Romero motion. Defendant entered his plea
that same day.
3. Sentencing
On February 2, 2018, the trial court granted defendant’s Romero motion. On
March 23, 2018, the trial court sentenced defendant to an aggregate term of 34 years
eight months in prison. The sentence was composed of: four years for assault with a
firearm (§ 245, subd. (a)(2)), 10 years for the gang enhancement (§ 186.22,
subd. (b)(1)(C)), and 10 years for the firearm enhancement (§ 12022.5, subd. (a)); two
years four months for attempted murder (§§ 664, subd. (a), 187) and three years four
months for the gang enhancement (§ 186.22, subd. (b)(1)(C)); seven years concurrent for
shooting at an inhabited dwelling (§ 246) and five years concurrent for the gang
enhancement (§ 186.22, subd. (b)(1)(B)). The trial court also imposed a five-year
sentence for defendant’s prior serious felony conviction (§ 667, subd. (a)).
On April 16, 2018, the trial court denied defendant’s Marsden4 motion and his
motion to withdraw his plea.
On May 16, 2018, defendant filed a notice of appeal and request for a certificate of
probable cause claiming that “his plea was not free and voluntary.” The trial court denied
defendant’s request for a certificate of probable cause.
DISCUSSION
On appeal, defendant argues that this court should reverse the judgment and
remand the matter back to the trial court so that it may exercise its discretion to dismiss
his firearm or prior serious felony conviction enhancements in light of the Legislature’s
recent enactment of Senate Bill Nos. 620 and 1393.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4 People v. Marsden (1970) 2 Cal.3d 118.

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1. Senate Bill Nos. 620 and 1393
Senate Bill No. 620, effective January 1, 2018, permits a trial court to exercise its
discretion and strike firearm enhancements imposed under sections 12022.5 and
12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.) The
statues provide that “[t]he court may, in the interest of justice pursuant to Section 1385
and at the time of sentencing, strike or dismiss an enhancement otherwise required to be
imposed by this section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” (§§ 12022.5, subd. (c),
12022.53, subd. (h).) Appellate courts have construed Senate Bill No. 620 as
retroactively applying to defendants whose sentences were not yet final when it came into
effect. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.) And, as explained in
detail below, appellate courts have come to conflicting conclusions about whether Senate
Bill No. 620 applies to defendants who were sentenced pursuant to negotiated plea
bargains and whether a certificate of probable cause is required to raise the issue on
appeal. (People v. Hurlic (2018) 25 Cal.App.5th 50 (Hurlic) [concluding that Senate Bill
No. 620 applies to defendants who were sentenced pursuant to negotiated pleas and a
certificate of probable cause is not required to raise issue on appeal]; but see People v.
Fox (2019) 34 Cal.App.5th 1124, petn. for review pending, petn. filed June 12, 2019,
(Fox) [coming to contrary conclusions].)
Senate Bill No. 1393, effective January 1, 2019, amended section 1385 to give
trial courts the discretion to dismiss prior serious felony conviction enhancements
imposed under section 667, subdivision (a). (Stats. 2018, ch. 1013, §§ 1, 2.) Appellate
courts have construed Senate Bill No. 1393 as retroactively applying to defendants whose
sentences were not yet final when it came into effect. (People v. Garcia (2018) 28
Cal.App.5th 961, 973.) Like the conflicting appellate court decisions on Senate Bill
No. 620, appellate courts have also reached conflicting conclusions about whether Senate

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Bill No. 1393 applies to defendants who were sentenced pursuant to negotiated plea
bargains and whether a certificate of probable cause is required to raise the issue on
appeal. (People v. Stamps (2019) 34 Cal.App.5th 117, review granted Jun. 12, 2019,
S255843 (Stamps) [concluding that Senate Bill No. 1393 applies to defendants who were
sentenced pursuant to negotiated pleas and a certificate of probable cause is not required
to raise issue on appeal]; but see People v. Galindo (2019) 35 Cal.App.5th 658, petn. for
review pending, petn. filed Jun. 26, 2019 (Galindo) [coming to contrary conclusion].)
2. Necessity of a Certificate of Probable Cause
We first address the threshold issue of whether defendant needs a certificate of
probable cause to maintain his appeal.
Section 1237.5 broadly states that “[n]o 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.” “ ‘Section 1237.5 was intended to remedy the unnecessary expenditure of
judicial resources by preventing the prosecution of frivolous appeals challenging
convictions on a plea of guilty.’ ” (People v. Johnson (2009) 47 Cal.4th 668, 676.)
“ ‘In determining whether section 1237.5 applies to a challenge of a sentence
imposed after a plea of . . . 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.’ ” (People v. Buttram (2003) 30
Cal.4th 773, 781-782.)

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In Hurlic, supra, 25 Cal.App.5th 50, a case from the Second Appellate District,
the defendant entered his plea and was sentenced before Senate Bill No. 620 came into
effect. (Hurlic, supra, at p. 54.) The defendant, however, filed a timely notice of appeal
and requested a certificate of probable cause on the ground that he sought to avail himself
of “ ‘the new Senate Bill 620.’ ” (Ibid.) The trial court denied his request for a
certificate of probable cause. Hurlic, however, determined that a certificate of probable
cause was not required for the defendant to argue on appeal that Senate Bill No. 620
applied to his case. (Id. at pp. 56-57.)
Hurlic cited three reasons for its conclusion. First, “[u]nless a plea agreement
contains a term requiring the parties to apply only the law in existence at the time the
agreement is made” (Hurlic, supra, 25 Cal.App.5th at p. 57), “ ‘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 good and in pursuance of public policy’ ” ’ ” (ibid.). In
Hurlic, the defendant’s plea agreement did not contain a term applying only the law in
effect at the time his plea was executed, so the plea agreement was deemed to incorporate
the changes enacted by Senate Bill No. 620, including the trial court’s newfound
discretion to strike firearm enhancements. (Ibid.)
Second, Hurlic determined that “dispensing with the certificate of probable cause
requirement in the circumstances present here better implements the intent behind that
requirement.” (Hurlic, supra, 25 Cal.App.5th at p. 57.) The defendant’s entitlement to
retroactive application of the law was undisputed, thus an appeal requesting an
application of the new law to his case was “neither ‘frivolous’ nor ‘vexatious,’ thereby
obviating any need for section 1237.5’s screening mechanism.” (Id. at p. 58.)
Lastly, Hurlic held that the rules of statutory construction favored applying
Senate Bill No. 620 over section 1237.5. (Hurlic, supra, 25 Cal.App.5th at p. 58.)

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Hurlic applied the general principle that when two statutes conflict, the more specific
statute controls. (Ibid.) Hurlic determined that Senate Bill No. 620 was a more specific
statute than section 1237.5; thus, Senate Bill No. 620 controlled. (Hurlic, supra, at
p. 58.)
A different panel of this court followed the reasoning set forth in Hurlic in People
v. Baldivia (2018) 28 Cal.App.5th 1071 (Baldivia). In Baldivia, the defendant committed
criminal offenses when he was 17 years old and entered into a plea agreement before
Proposition 575 and Senate Bill No. 620 went into effect. (Baldivia, supra, at p. 1073.)
In accordance with his plea agreement, the defendant was sentenced to a term in prison
that included a sentence attached to his firearm enhancements. (Ibid.) The defendant did
not obtain a certificate of probable cause. (Ibid.)
After examining the decision in Hurlic, this court determined that the first reason
discussed in Hurlic—that plea agreements are deemed to incorporate changes in the
law—was dispositive. (Baldivia, supra, 28 Cal.App.5th at p. 1077.) We concluded that
“[i]f the electorate or the Legislature expressly or implicitly contemplated that a change
in the law related to the consequences of criminal offenses would apply retroactively to
all nonfinal cases, those changes logically must apply to preexisting plea agreements,
since most criminal cases are resolved by plea agreements.” (Id. at p. 1079.) Thus, the
defendant’s arguments pertaining to the applicability of Proposition 57 and Senate Bill
No. 620 were not an attack on the validity of the defendant’s plea and the defendant did
not need a certificate of probable cause to maintain his appeal. (Baldivia, supra, at
p. 1079.)
5 Proposition 57 bars direct-filed adult criminal proceedings for juveniles and
requires a juvenile fitness hearing before a juvenile case can be transferred to adult
criminal court. (Baldivia, supra, 28 Cal.App.5th at p. 1074.)

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After Baldivia was decided, the First Appellate District followed Hurlic in Stamps,
supra, 34 Cal.App.5th 117, review granted, and applied Hurlic’s analysis to Senate Bill
No. 1393. In Stamps, the defendant pleaded no contest and admitted a prior serious
felony conviction. (Stamps, supra, at p. 119.) At the time the defendant was sentenced
in January 2018, the trial court did not have the discretion to strike an enhancement for a
prior serious felony conviction. (Id. at p. 120.) Subsequently, the Governor signed
Senate Bill No. 1393, effective January 1, 2019, which amended section 1385 to give trial
courts the discretion to strike prior serious felony convictions. (Stamps, supra, at p. 120.)
On appeal, the defendant argued that the amendment to section 1385 applied retroactively
to his case. (Stamps, supra, at p. 120.) The Attorney General disagreed, arguing that the
defendant was not entitled to relief because he pleaded no contest in exchange for a
stipulated sentence and he failed to obtain a certificate of probable cause. (Id. at p. 121.)
Citing Hurlic and Baldivia, Stamps concluded a certificate of probable cause was
not required to raise the issue on appeal. (Stamps, supra, 34 Cal.App.5th at p. 121, rev.
granted.) Stamps observed that the amendment to section 1385 enacted by Senate Bill
No. 1393 was not “on the books or anticipated when defendant entered his plea
agreement, so [the defendant’s] present appeal [was] not a challenge to the validity of the
plea itself.” (Stamps, supra, at p. 122.) Stamps rejected the Attorney General’s claim
that applying Senate Bill No. 1393 retroactively to the defendant’s case would deprive
the prosecution of the benefits of the plea bargain, applying the general rule that a plea
agreement is deemed to incorporate existing law and reserve the power of the state to
amend the law or enact additional laws. (Stamps, supra, at pp. 122-123.)
Not all appellate courts have reached the same conclusion reached by Hurlic,
Baldivia, and Stamps. In People v. Kelly (2019) 32 Cal.App.5th 1013, review granted
June 12, 2019, S255145 (Kelly), the Second Appellate District dismissed a defendant’s
appeal seeking retroactive application of Senate Bill No. 1393 because she failed to

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obtain a certificate of probable cause. (Kelly, supra, at p. 1015.) The defendant in Kelly
agreed to a negotiated disposition of 18 years, which included five-year enhancements for
her prior serious felony convictions. (Ibid.)
Kelly distinguished Hurlic, noting that Hurlic “dispensed with the certificate of
probable cause requirement based on very ‘narrow circumstances.’ ” (Kelly, supra, 32
Cal.App.5th at p. 1016, rev. granted.) Kelly observed that the defendant in Hurlic “ ‘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.” ’ ” (Ibid.) Kelly determined that the defendant’s
notice of appeal did not state that she intended to avail herself of the new law and
concluded that the five-year enhancements were “a bargained-for component of the
sentence.” (Id. at p. 1017.) Kelly did not otherwise analyze or attempt to distinguish
Hurlic’s analysis.
More recently, the First Appellate District decided Fox, supra, 34 Cal.App.5th
1124. The defendant in Fox entered his plea on September 19, 2017, the week after the
Legislature passed Senate Bill No. 620 and the day after it was enrolled. (Id. at p. 1128.)
He was sentenced on October 11, 2017, the same day the Governor signed the bill into
law. (Ibid.) The defendant appealed, seeking a certificate of probable cause on the basis
that his trial counsel coerced him into taking the plea offer. (Ibid.) The trial court denied
the defendant’s certificate of probable cause. (Ibid.)
Fox reviewed the decisions in Hurlic, Baldivia, and Stamps and concluded that
these cases were not convincing. (Fox, supra, 34 Cal.App.5th at pp. 1130-1133.) Fox
determined that the “general rule that plea agreements incorporate subsequent changes in
the law” (id. at p. 1135) was not pertinent for two reasons: (1) Senate Bill No. 620 was a
part of the legal landscape before the defendant entered his plea and his trial counsel’s

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comments at the sentencing hearing indicate that the parties understood that the defendant
would not have the benefit of Senate Bill No. 620 when it came into effect (Fox, supra, at
pp. 1134-1135), and (2) given that Senate Bill No. 620 applies only at the time of
sentencing or any resentencing that may occur pursuant to any other law, there is no
discernible legislative intent to “dispose of existing limits on a trial court’s discretion
when sentencing a defendant convicted by plea” (Fox, supra, at p. 1137). Fox concluded
that the Legislature did not intend for the new law to enable “defendants who agreed to
serve a specific term for a firearm enhancement to avoid that term yet retain the benefits
of their plea agreements.” (Id. at p. 1139.) Fox held that “the remedy for such
defendants is to seek to withdraw their pleas, and they may therefore seek resentencing
under Senate Bill No. 620 on direct appeal only if they first obtain a certificate of
probable cause—hardly as onerous a requirement as Hurlic suggests—to enable them to
challenge the validity of their pleas.” (Fox, supra, at p. 1139.)
Following Fox, a different panel of the First Appellate District decided Galindo,
supra, 35 Cal.App.5th 658. Galindo agreed with the reasoning set forth in Fox and
concluded that a certificate of probable cause was required to request remand and
resentencing under Senate Bill No. 1393 when a defendant has been convicted by
negotiated plea and sentenced to an agreed-upon term in prison. (Galindo, supra, at
pp. 669-670.)6 Galindo held that when the parties agree to a specific sentence, a
defendant seeking to reduce the agreed-upon sentence is “necessarily challenging the
validity of the plea itself.” (Id. at p. 670.) Relying on Fox, Galindo concluded that the
principle that later laws are incorporated into plea bargains was inapplicable because the
6 In the recently filed concurring and dissenting opinion from the First Appellate
District, People v. Alexander (Jun. 25, 2019, A15809, A152247) __ Cal.App.5th __, __
[2019 Cal. App. LEXIS 580, *25], Justice Needham agreed with Fox and Galindo and
concluded that a certificate of probable cause was necessary to request remand for
resentencing under Senate Bill No. 1393.

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principle is relevant only when changes are intended to apply to the defendant in
question. (Id. at pp. 670-671.) Galindo concluded that “[t]here is nothing in the
language or legislative history of Senate Bill [No.] 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.” (Id. at p. 671.)
We find Hurlic, Baldivia, and Stamps to be more persuasive than Kelly, Fox, and
Galindo. We agree with Hurlic, Baldivia, and Stamps that since plea agreements
generally incorporate the possibility that changes in the law will alter the consequences of
pleas, defendant is not attacking the validity of his plea when he argues that Senate Bill
Nos. 620 and 1393 apply to his case. (Hurlic, supra, 25 Cal.App.5th at p. 57; Baldivia,
supra, 28 Cal.App.5th at pp. 1077-1078; Stamps, supra, 34 Cal.App.5th at pp. 121-122,
rev. granted.) And since defendant’s arguments about Senate Bill Nos. 620 and 1393 do
not attack the validity of his plea, he does not need a certificate of probable cause to raise
his arguments. (Hurlic, supra, at pp. 58-59; Baldivia, supra, at p. 1079; Stamps, supra, at
p. 121.)
We adhere to Hurlic, Baldivia, and Stamps for several reasons. First, we do not
find Kelly to be persuasive. Kelly dispensed with Hurlic by incorrectly concluding that
Hurlic decided its case on narrow circumstances—that the Hurlic defendant wrote on his
request for a certificate of probable cause that he sought to avail himself of the benefits of
Senate Bill No. 620. (Kelly, supra, 32 Cal.App.5th 1013, rev. granted, at pp. 1016-1017.)
Kelly did not otherwise discuss or analyze the reasoning behind the Hurlic court’s
decision.

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We find Fox similarly unpersuasive. In part, Fox noted that the defendant in that
case entered and executed his plea at a time when Senate Bill No. 620 was arguably
“ ‘part of the legal landscape,’ ” so the general rule that plea agreements incorporate
subsequent changes in the law was not applicable. (Fox, supra, 34 Cal.App.5th at
p. 1135.) The defendant in Fox entered his plea the week after the Legislature passed
Senate Bill No. 620 and was sentenced the same day the Governor signed the bill into
law. (Id. at p. 1138.)
We are not convinced by Fox’s conclusion that Senate Bill No. 620 was part of the
legal landscape when the defendant in that case entered his plea. The defendant in Fox
negotiated his plea agreement before the bill was signed into law. (Fox, supra, 34
Cal.App.5th at p. 1128.) It is not plausible that a bill that was not yet signed into law—
which would not have been effective for several months—could have factored into the
defendant’s plea negotiations.
Fox is also distinguishable. Even if we were to accept that Senate Bill No. 620
was part of the legal landscape when the Fox defendant entered his plea agreement, it is
apparent that neither Senate Bill Nos. 620 nor 1393 were a part of the legal landscape
when defendant entered his plea in this case. Defendant entered his plea in September
2016. Senate Bill No. 620 was passed by the Legislature and signed into law in 2017.
(Hurlic, supra, 25 Cal.App.5th at p. 54.) Senate Bill No. 1393 was passed by the
Legislature and signed into law in 2018. (People v. Garcia, supra, 28 Cal.App.5th at
p. 971.) These bills were not in effect at the time defendant negotiated and entered his
plea in 2016. They could not have been considered by the parties during plea
negotiations. As a result, the principle that plea agreements incorporate subsequent
changes in the law remains applicable in defendant’s case.
We also respectfully disagree with Fox and Galindo’s conclusion that the
Legislature did not intend for Senate Bill Nos. 620 and 1393 to apply to defendants who

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were sentenced pursuant to a negotiated plea. Fox concluded that nothing in Senate Bill
No. 620 suggested that it was intended to empower trial courts to disregard express terms
of a negotiated plea agreement. (Fox, supra, 34 Cal.App.5th at p. 1138.) Galindo
reached the same conclusion with respect to Senate Bill No. 1393. (Galindo, supra, 35
Cal.App.5th at pp. 670-671.) Yet Senate Bill No. 620 broadly applies at the time of
sentencing or resentencing and does not draw a distinction between sentencing hearings
for negotiated plea deals or for criminal trials. (§§ 12022.5, subd. (c), 12022.53,
subd. (h).) And we must infer that both Senate Bill Nos. 620 and 1393 apply to all cases
not yet final after the statutes became effective because the Legislature did not make any
express declarations about their retroactivity. (People v. Garcia, supra, 28 Cal.App.5th
at pp. 972-973; In re Estrada (1965) 63 Cal.2d 740, 744-745; People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 307-308 & fn. 5.)
There is nothing to suggest that plea agreements should be specifically exempted
from the ameliorative effects of Senate Bill Nos. 620 and 1393. In fact, it is established
precedent that “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.” (Doe v. Harris (2013) 57 Cal.4th 64,
73-74; see Harris v. Superior Court (2016) 1 Cal.5th 984, 989-993 [Proposition 47
applies retroactively to all qualifying convictions, whether conviction was for trial or
plea].)
For these reasons, we conclude that defendant’s arguments pertaining to Senate
Bill Nos. 620 and 1393 are reserved by the plea agreement, do not challenge the validity

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of the plea, and, as a result, a certificate of probable cause is not required to maintain
defendant’s appeal.7
3. Necessity of Remand
Having determined that both Senate Bill Nos. 620 and 1393 retroactively apply to
defendant and having concluded that he does not need a certificate of probable cause to
maintain his appeal, we must now determine whether a remand is necessary or if it would
be an “ ‘idle act.’ ” (People v. Gamble (2008) 164 Cal.App.4th 891, 901 (Gamble).)
Generally, “when 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. Brown (2007) 147 Cal.App.4th 1213, 1228.) The rationale for this general
rule is that “[d]efendants are entitled to ‘sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court,’ and a court that is unaware of its
discretionary authority cannot exercise its informed discretion.” (Ibid.) There is an
exception to this rule, however, where “ ‘the record shows that the trial court would not
have exercised its discretion even if it believed it could do so,’ ” in which case, “ ‘remand
would be an idle act and is not required.’ ” (Gamble, supra, 164 Cal.App.4th at p. 901.)
7 On May 4, 2019, defendant filed an application for relief from default and for
leave to file an amended notice of appeal that includes a statement and request for a
certificate of probable cause. Defendant sought leave with this court to seek a late
certificate of probable cause with the trial court, citing his arguments pertaining to Senate
Bill Nos. 620 and 1393. The ruling on defendant’s application was deferred for
consideration with the merits of his appeal. We deny defendant’s application.
Nonetheless, our decision on defendant’s application does not affect his appeal. A
certificate of probable cause is not necessary if a defendant’s appeal is based on grounds
that arose after entry of the plea that do not affect the plea’s validity. (Cal. Rules of
Court, rule 8.304(b)(4).) We have determined that a certificate of probable cause is not
necessary to maintain defendant’s appeal and have reached his arguments pertaining to
Senate Bill Nos. 620 and 1393.

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In People v. McDaniels (2018) 22 Cal.App.5th 420, the appellate court addressed
the appropriate standard to “apply in assessing whether to remand a case for resentencing
in light of Senate Bill [No.] 620.”8 (Id. at p. 425.) Relying on People v. Gutierrez (1996)
48 Cal.App.4th 1894, which dealt with reconsidering Three Strikes sentencing in light of
Romero, McDaniels determined that a “remand is required unless the record shows that
the trial court clearly indicated when it originally sentenced the defendant that it would
not in any event have stricken a firearm enhancement.” (McDaniels, supra, at p. 425.)
McDaniels concluded that the salient question is whether the trial court “express[ed] its
intent to impose the maximum sentence permitted.” (Id. at p. 427.) “When such an
expression is reflected in the appellate record, a remand would be an idle act because the
record contains a clear indication that the court will not exercise its discretion in the
defendant’s favor.” (Ibid.) Likewise, in People v. Almanza (2018) 24 Cal.App.5th 1104,
the appellate court remanded the matter for resentencing because the court’s imposition
of consecutive sentences was not a clear indication of how the trial court would
ultimately rule on remand. (Id. at pp. 1110-1111.)
Based on the record before us, we determine that remand is necessary so that the
trial court may exercise its discretion to dismiss the enhancement imposed for
defendant’s prior serious felony conviction imposed under section 667, subdivision (a).
Senate Bill No. 1393 was not in effect at the time of the sentencing hearing and the
record is silent as to whether the court would have struck the enhancement had it been
given the discretion to do so.
Whether remand is necessary with respect to defendant’s firearm enhancements is
a more complicated issue. Both parties acknowledge that Senate Bill No. 620 was
effective January 1, 2018, and defendant was sentenced in March 2018. Thus, at the time
8 We find that the same standard applies in cases involving Senate Bill No. 1393.

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of the sentencing hearing, the trial court had the discretion to strike defendant’s firearm
enhancements.
As the reviewing court, we must presume that the trial court knew and applied the
correct statutory and case law at the time of sentencing absent affirmative evidence to the
contrary. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on a different
ground as stated in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People
v. Woods (1993) 12 Cal.App.4th 1139, 1152 [reviewing court presumes trial court knew
and properly applied law].) This presumption, however, does not apply if “the law in
question was unclear or uncertain when the lower court acted.” (People v. Jeffers (1987)
43 Cal.3d 984, 1000; People v. Diaz (1992) 3 Cal.4th 495, 567.)
Hurlic, supra, 25 Cal.App.5th 50, was not yet decided at the time of defendant’s
sentencing hearing. And, given that there is conflicting case law on the applicability of
Senate Bill No. 620 to convictions obtained by plea (see Fox, supra, 34 Cal.App.5th
1124; Kelly, supra, 32 Cal.App.5th 1013, rev. granted), the presumption that the trial
court understood and applied the correct statutory law does not apply.
For these same reasons, we conclude that defendant’s failure to invite the trial
court to exercise its discretion to strike his firearm enhancements does not forfeit his
argument on appeal. (See People v. Carmony (2004) 33 Cal.4th 367, 375-376 [failure on
part of defendant to invite trial court to dismiss prior strike forfeits right to raise issue on
appeal].) The law was new and unsettled at the time of defendant’s sentencing, which
excuses his counsel’s failure to object. (See People v. Turner (1990) 50 Cal.3d 668, 703
[unforeseeable change in law rendered it unreasonable to expect trial counsel to object
and anticipate the change]; People v. Rangel (2016) 62 Cal.4th 1192, 1215-1216 [failure
to object is excused if there is an unforeseen change in the law]; In re Sean W. (2005) 127
Cal.App.4th 1177 [since trial court was unaware it had discretion with respect to
sentencing issue, juvenile’s failure to raise issue below did not constitute waiver].)

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As a result, we must remand the matter back to the trial court so that it can
exercise its discretion to decide whether to strike defendant’s firearm enhancements.
Like the prior serious felony conviction enhancement, the record is silent as to whether
the trial court would have struck the firearm enhancements had it been aware of its
newfound discretion at the sentencing hearing, and the trial court did not express an
intent to impose the maximum sentence permitted by law.
Lastly, we reject the People’s argument that the trial court’s decision to impose the
agreed-upon sentence of 34 years eight months clearly indicates that it would impose the
same sentence on remand. The People contend that under People v. Segura (2008) 44
Cal.4th 921, the trial court could not unilaterally alter the terms of the plea agreement; it
could only approve or disapprove of the plea agreement. (Id. at pp. 931-932.) However,
as we previously discussed, a plea agreement is deemed to incorporate changes in the law
unless the agreement contains a term requiring the parties to apply only the law in effect
at the time the agreement was made. (Hurlic, supra, 25 Cal.App.5th at p. 57; Doe v.
Harris, supra, 57 Cal.4th at p. 66.) Defendant’s plea agreement does not contain this
kind of term. Moreover, given that the law in this area remains unclear, the trial court’s
decision to impose the agreed-upon term does not definitively demonstrate that it would
impose the same sentence on remand.
DISPOSITION
The judgment is reversed and the matter is remanded for the purpose of allowing
the trial court to consider whether to strike the Penal Code section 12022.53 enhancement
and the Penal Code section 667, subdivision (a) enhancement under Penal Code section
1385. If the trial court strikes any of the enhancements, it shall resentence defendant. If
the trial court does not strike any of the enhancements, it shall reinstate the sentence.

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Premo, J.
WE CONCUR:
Greenwood, P.J.
Elia, J.
People v. Espana
H046062

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