P. v. Antuna

Filed 7/30/19 P. v. Antuna 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
JOSEPH ANTUNA,
Defendant and Appellant.
H042678
(Santa Clara County
Super. Ct. No. C1084548)
Pursuant to a plea agreement, defendant Joseph Antuna pleaded guilty to murder
(count 1) (Pen. Code, §§ 187, 189)1 and two counts of attempted murder (counts 2 & 3)
(§§ 187, 664, subd. (a)); admitted allegations that those attempted murders were willful,
deliberate, and premeditated; admitted gang and firearm allegations; and waived his
appellate rights. In exchange, defendant received a total term of 50 years to life for the
murder and the associated firearm enhancement (§ 12022.53, subd. (d)) and concurrent
sentences on the remaining two counts. Defendant was 21 years old when he committed
those offenses.
The passage of Senate Bill No. 620 (20l7-2018) (Sen. Bill No. 620) amended
section 12022.53, subdivision (h) (hereafter 12022.53(h)), effective January 1, 2018.
(Stats. 2017, ch. 682, § 2, p. 5106; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600,
subd. (a).) Prior to this amendment, section 12022.53(h) and the predecessor statute
1 All further statutory references are to the Penal Code unless otherwise specified.

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mandated imposition of the section’s firearm enhancements.2 This was the law when
defendant committed his crimes and when he was sentenced. Since its amendment in
2017, section 12022.53(h) has provided: “The 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.”
On appeal defendant asserts that the judgment should be reversed to permit the
trial court to retroactively exercise its discretion to strike the firearm enhancements as
now permitted by section 12022.53(h). Defendant maintains that this issue is not barred
by his general waiver of his right to appeal or by the lack of a certificate of probable
cause.3 Defendant further asserts that since the youth offender parole hearing statutes
now apply to him, the case should be remanded for a “Franklin hearing” (see People v.
Franklin (2016) 63 Cal.4th 261 (Franklin)) to preserve mitigating evidence tied to his
youth. He contends that failure to order such a remand would result in a violation of his
rights to due process and equal protection under the law.
We find that neither defendant’s general waiver of his right to appeal nor the lack
of a certificate of probable cause bars this court from proceeding with this appeal and
reaching the issues that he now raises. Since we conclude that the Legislature intended
section 12022.53(h), as amended, to apply retroactively, we will remand the case to allow
the trial court to consider whether to exercise its discretion under that provision. In
addition, we agree that a Franklin hearing should be held following remand.
2 Until the 2017 amendment, section 12022.53(h) provided: “Notwithstanding
Section 1385 or any other provision of law, the court shall not strike an allegation under
this section or a finding bringing a person within the provisions of this section.”
(Stats. 2010, ch. 711, § 5, p. 4041; see Stats. 2006, ch. 901, § 11.1, p. 7077 [predecessor
§ 12022.53(h)].)
3 Defendant’s motion for relief from default and for leave to file an amended
notice of appeal that includes a statement of reasonable grounds and a request for a
certificate of probable cause is denied. (See Cal. Rules of Court, rules 8.60(d), 8. 304(b),
8.308(a); People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099.)

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I
Procedural History
Defendant’s motion to represent himself pursuant to Faretta v. California (1975)
422 U.S. 806 (Faretta) was granted on June 20, 2012.
A first amended information (hereafter information) charged defendant with three
counts4 committed on or about June 25, 2010: murder of C.L. with malice aforethought
(§ 187) (count 1) and attempted murder of I.C. and C.C. (§§ 187, 664, subd. (a))
(counts 2 & 3). The information alleged that the attempted murders charged in counts 2
and 3 were committed willfully, deliberately, and with premeditation. It alleged that all
of the charged offenses were committed for the benefit of a criminal street gang within
the meaning of section 186.22, subdivision (b)(1)(C) [10-year enhancement]) and that the
attempted murders charged in counts 2 and 3 were committed for the benefit of a criminal
street gang within the meaning of section 186.22, subdivision (b)(5) (15-year minimum
parole eligibility term). As to counts 1 and 3, the information alleged that defendant
personally and intentionally discharged a firearm and proximately caused great bodily
injury or death within the meaning of 12022.53, subdivision (d) (consecutive 25-years-to-
life enhancement), and as to count 2, the information alleged that defendant was a
principal and a principal had intentionally and personally discharged a firearm and
proximately caused great bodily injury within the meaning of section 122022.53,
subdivisions (d) and (e)(1) (consecutive 25-years-to-life enhancement).
At a change-of-plea hearing on May 6, 2015, the prosecutor announced that
defendant would be pleading guilty to all charges against him in the information and
admitting all associated allegations as part of a plea agreement. The prosecutor informed
the court that the parties had agreed that the total sentence on count 1 would be 50 years
to life, which included a 25-years-to-life term for first degree murder and a 25-years-to-
4 A codefendant was charged with six counts.

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life term for the firearm enhancement and that the sentences on counts 2 and 3 would run
concurrently.
Defendant pleaded guilty to murder (count 1).5 As to this crime, he also admitted
the criminal street gang enhancement allegation (§ 186.22, subd. (b)(1)(C) [10-year
enhancement]) and the firearm enhancement allegation pursuant to section 12022.53,
subdivision (d). He also pleaded guilty to two counts of attempted murder (counts 2, 3)
(§§ 187, 664, subd. (a)), and as to those counts he admitted that the offenses were willful,
deliberate, and premeditated (see §§ 189, 664, subd. (a)) and admitted the criminal street
gang allegations pursuant to section 186.22, subdivision (b)(5)6 and the firearm
enhancement allegations.
At the time of sentencing on June 5, 2015, the trial court imposed a total sentence
of 50 years to life. The total term on count 1 included a term of 25 years to life for
murder7 (§ 190, subd. (a)) plus a consecutive 25-years-to-life firearm enhancement
(§ 12022.53, subd. (d)). On both counts 2 and 3, the court imposed concurrent terms of
40 years to life, which each included a 15-years-to-life term for attempted murder
5 The trial court asked defendant, “Then what is your plea to count one, that on or
about June 25th of 2010 in the County of Santa Clara, State of California, you violated
Penal Code Section 187, murder, in that you did unlawfully and with malice aforethought
kill [C.L.], a human being? Defendant answered, “Guilty.”
6 Subdivision (b)(5) of section 186.22 “serves as an alternate penalty provision”
(People v. Fuentes (2016) 1 Cal.5th 218, 224), “imposes a minimum prison confinement
of 15 years before a defendant is eligible for parole, [and] applies when the underlying
felony by its own terms provides for a life sentence.” (Ibid.)
7 At the sentencing hearing, defendant protested that the count 1 offense was not
first degree murder. The trial court indicated that proceedings were beyond that point.
On appeal, defendant does not argue that the abstract of judgment incorrectly reflects the
count 1 crime to which he pleaded. We note that in People v. Hester (2000) 22 Cal.4th
290, the Supreme Court stated: “Where the defendants have pleaded guilty in return for a
specified sentence, appellate courts will not find error even though the trial court acted in
excess of jurisdiction in reaching that figure, so long as the trial court did not lack
fundamental jurisdiction. The rationale behind this policy is that defendants who have
received the benefit of their bargain should not be allowed to trifle with the courts by
attempting to better the bargain through the appellate process. [Citations.]” (Id. at
p. 295.)

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(see ante, fn. 6) plus a consecutive 25-years-to-life firearm enhancement. The court said
that as to each of the three counts, it was striking the 10-year enhancement (§ 186.22,
subd. (b)(1)(C)) pursuant to section 186.22, subd. (g).8
Defendant filed a notice of appeal and requested a certificate of probable cause.
The request merely stated: “For reasons that were stated in court, defendant’s plea was
involuntary and he received ineffective assistance of counsel.”9 The request was denied.
II
Discussion
A. Firearm Enhancements Imposed under Section 12022.53
Defendant argues that the judgment should be reversed to permit the trial court to
exercise its discretion under section 12022.53(h), as amended effective January 1, 2018.
(See Stats. 2017, ch. 682, § 2, p. 5106; Cal. Const., art. IV, § 8, subd. (c); Gov. Code,
§ 9600, subd. (a).) Defendant maintains that he may raise this issue even though he
orally waived his right to appeal when he entered his pleas and admissions and did not
obtain a certificate of probable cause.
1. Waiver of Right to Appeal
Defendant argues that the scope of his general waiver of his right to appeal did not
extend to “prospective sentencing errors” and that therefore we may reach the merits of
his contention that amended section 12022.53 retroactively applies to him. Defendant
insists that his appellate waiver did not encompass such errors because “the trial court did
not sufficiently advise [him] of his right to appeal,” he did not specifically waive future
sentencing errors, and he “did not knowingly and intelligently waive [his] appellate rights
with respect to prospective sentencing errors,”
8 Defendant admitted a gang enhancement within the meaning of section 186.22,
subdivision (b)(1)(C), as to only count 1.
9 “[A] defendant who elects to represent himself cannot thereafter complain that
the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ”
(Faretta, supra, 422 U.S. at p. 834, fn. 46; see People v. Espinoza (2016) 1 Cal.5th 61,
75.)

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a. Background
In a letter to the Deputy District Attorney (D.D.A.) Miguel Valdovinos, dated
April 27, 2015, defendant, who was representing himself, stated that he was contacting
the D.D.A. to settle the case. In the letter, defendant stated in part, “I want to get this
case over with. If this requires my pleading guilty and waiving my right to appeal, then I
will accept that along with whatever amount of time you feel is reasonable.”
At the change of plea hearing on May 6, 2015, the prosecutor told the court that
the terms of the parties’ plea agreement included a waiver of appellate rights. Before
accepting defendant’s pleas and admissions, the court advised defendant of the
constitutional rights that he would give up by pleading guilty, elicited defendant’s waiver
of those rights, and informed defendant of the consequences of such pleas and
admissions. Specifically as to the right to appeal, the trial court told defendant, “And
you’re also, by this plea, waiving any right to appeal. Do you understand that?”
Defendant replied, “Yeah.”
b. Law Governing Waiver of Right to Appeal
“Just as a defendant may affirmatively waive constitutional rights to a jury trial, to
confront and cross-examine witnesses, to the privilege against self-incrimination, and to
counsel as a consequence of a negotiated plea agreement, so also may a defendant waive
the right to appeal as part of the agreement. [Citations.]” (People v. Panizzon (1996) 13
Cal.4th 68, 80 (Panizzon).) “To be enforceable, a defendant’s waiver of the right to
appeal must be knowing, intelligent, and voluntary. [Citations.] Waivers may be
manifested either orally or in writing. [Citation.]” (Ibid.)
The Supreme Court in Panizzon agreed that People v. Sherrick (1993) 19
Cal.App.4th 657 and People v. Vargas (1993) 13 Cal.App.4th 1653 (Vargas) “generally
support[ed] the proposition that a defendant’s general waiver of the right to appeal, given
as part of a negotiated plea agreement, will not be construed to bar the appeal of
sentencing errors occurring subsequent to the plea.” (Panizzon, supra, 13 Cal.4th at

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p. 85, fn. ommitted.) The Supreme Court pointed out, however, that “the defendants in
those decisions were attempting to appeal sentencing issues that were left unresolved by
the particular plea agreements involved.” (Ibid.) The court explained that “[i]n each of
those decisions, the appellate court viewed the sentencing issue as not being within the
contemplation and knowledge of the defendant at the time the waiver was made and so
refused to extend thereto a general waiver of the right to appeal.” (Ibid.)
In Panizzon, the Supreme Court observed that “the sentence imposed by the court
was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea
agreement” (Panizzon, supra, 13 Cal.4th at p. 86) and that “the essence of [the]
defendant’s claim [was] that his sentence [was] disproportionate to his level of culpability
[citation], a factor that . . . was known at the time of the plea and waiver.” (Ibid.) In
addition, the express terms of defendant Panizzon’s waiver “specifically extended to any
right to appeal [the specified] sentence.” (Ibid.) The Supreme Court concluded that the
defendant was seeking “appellate review of an integral element of the negotiated plea
agreement, as opposed to a matter left open or unaddressed by the deal.” (Ibid.)
It is generally understood that a defendant’s “general waiver of appeal rights
ordinarily includes error occurring before but not after the waiver because the defendant
could not knowingly and intelligently waive the right to appeal any unforeseen or
unknown future error. (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Thus, a
waiver of appeal rights does not apply to ‘ “possible future error” [that] is outside the
defendant’s contemplation and knowledge at the time the waiver is made.’ [Citations.]”
(People v. Mumm (2002) 98 Cal.App.4th 812, 815.)
c. The Validity of Defendant’s General Waiver of His Right to Appeal
Defendant now claims that “the trial court did not sufficiently advise [him] of his
right to appeal” and he “did not knowingly and intelligently waive his appellate rights
with respect to prospective sentencing errors.” He also asserts that “[b]ecause [he] did

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not knowingly and intelligently [waive] the right to appeal future sentencing errors, the
appeal cannot in any sense be construed as an attack on the validity of the plea.”
To the extent defendant is asserting that his waiver of the right to appeal was
unenforceable because it was not knowing and intelligent, defendant is in effect
challenging the validity of his plea. We cannot reach this assertion in the absence of a
certificate of probable cause.
“[I]ssues going to the validity of a plea require compliance with section 1237.5.
[Citation.] . . . [A] certificate is required when a defendant claims that warnings regarding
the effect of a guilty plea on the right to appeal were inadequate. [Citation.]” (Panizzon,
supra, 13 Cal.4th at p. 76.) “[A] defendant who waives the right to appeal as part of a
plea agreement must obtain a certificate of probable cause to appeal on any ground
covered by the waiver, regardless of whether the claim arose before or after the entry of
the plea. Absent such a certificate, the appellate court lacks authority under California
Rules of Court, rule 8.304(b) to consider the claim because it is in substance a challenge
to the validity of the appellate waiver, and therefore to the validity of the plea.” (People
v. Espinoza (2018) 22 Cal.App.5th 794, 797 (Espinoza).)
As Justice Baxter explained in his concurring opinion in People v. Buttram (2003)
30 Cal.4th 773 (Buttram), “[a]n attempt to appeal the enforceability of the appellate
waiver itself (for example, on grounds that it was not knowing, voluntary, and intelligent,
or had been induced by counsel’s ineffective assistance) would not succeed in
circumventing the certificate requirement. This is because, however important and
meritorious such a challenge might be, it too would manifestly constitute an attack on the
plea’s validity, thus requiring a certificate in any event.” (Id. at p. 793, conc. opn. of
Baxter, J.).)
d. The Scope of Defendant’s General Waiver of His Right to Appeal
Defendant also contends that “the scope of [his] appellate waiver did not extend to
sentencing issues that arose after the plea” and that consequently the waiver does not bar

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him from asking this court to remand the case to permit the trial court to exercise its
discretion under section 12022.53(h), as amended. This court has concluded “[b]ased on
our review of the relevant authorities, [that] a certificate of probable cause is not required
[to resolve] the issue of whether the defendant’s appellate claim falls within the scope of
an appellate waiver.” (People v. Becerra (2019) 32 Cal.App.5th 178, 188 (Becerra),
review den., May 22, 2019, S254821.)
“ ‘A negotiated plea agreement is a form of contract, and it is interpreted
according to general contract principles. [Citations.]’ (People v. Shelton (2006) 37
Cal.4th 759, 767 (Shelton).) Likewise, ‘[b]ecause waivers of appellate rights are
ordinarily found in the context of a plea bargain, the scope of the waiver is approached
like a question of contract interpretation—to what did the parties expressly or by
reasonable implication agree? [Citations.]’ (In re Uriah R. (1999) 70 Cal.App.4th 1152,
1157.)” (Becerra, supra, 32 Cal.App.5th at pp. 188-189.) The fundamental goal in
interpreting a plea agreement is to effectuate “ ‘the mutual intention of the parties’
[Citation.]” (Shelton, supra, at p. 767.)
Ordinarily, a general waiver of the right to appeal does not encompass sentencing
errors outside of the defendant’s contemplation and knowledge at the time of the
negotiated plea and waiver. (See Vargas, supra,13 Cal.App.4th at pp. 1661-1662
[alleged error in calculating conduct credits]; cf. Panizzon, supra, 13 Cal.4th at pp. 85-
86.) We conclude that defendant’s claims on appeal are outside the scope of his waiver
of his right to appeal for the following reasons. First, a future change in sentencing law
may be deemed incorporated into a plea agreement if the Legislature or the electorate so
intends. (See Doe v. Harris (2013) 57 Cal.4th 64, 66, 71, 73-74 (Doe); Harris v.
Superior Court (2016) 1 Cal.5th 984, 990-992; see also People v. Baldivia (2018) 28
Cal.App.5th 1071, 1078 (Baldivia).) Second, defendant’s waiver of his appellate rights

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was a general waiver that did not mention sentencing at all.10 Third, the 2017
amendment of section 12022.53(h) was outside of defendant’s contemplation and
knowledge at the time of his negotiated plea and waiver in 2015. (See People v. Wright
(2019) 31 Cal.App.5th 749, 753-754 [defendant’s waiver of the right to appeal from a
stipulated sentence pursuant to a plea bargain did not “waive the right to appeal future
sentencing error based on a change in the law of which he was unaware at the time he
entered his plea”]; but see People v. Barton (2019) 32 Cal.App.5th 1088, review granted
June 19, 2019, S25521411.) In addition, at the time of defendant’s plea and waiver, the
possibility of a Franklin hearing pursuant to Franklin, supra, 63 Cal.4th 261 was also
outside of defendant’s contemplation and knowledge since that case had not yet been
decided and under then existing law he was not entitled to a youth offender parole
hearing. (See Stats. 2013, ch. 312, §§ 3,4, 5, pp. 2523-2525.)
Accordingly, defendant’s general waiver of the right to appeal does not render his
claims not cognizable on appeal.
2. Certificate of Probable Cause Requirement
Defendant acknowledges that “the plea agreement included an agreed-upon
sentence of 50 years to life.” However, he asserts that there was no need for him to
obtain a certificate of probable cause. Citing Doe, supra, 57 Cal.4th at pp. 70-71, 73-74,
10 The Supreme Court has indicated that a “general waiver” means “a waiver that
is nonspecific, e.g., ‘I waive my appeal rights’ or ‘I waive my right to appeal any ruling
in this case.’ ” (Panizzon, supra, 13 Cal.4th at p. 85, fn. 11.) In Panizzon, the waiver
was not a general waiver in that the written waiver and plea form initialed and signed by
the defendant stated, “I hereby waive and give up my right to appeal from the sentence I
will receive in this case.” (Id. at p. 82.)
11 The Supreme Court has limited review in Barton to the following issue: “Does
a waiver of the right to appeal, included as part of a plea bargain for a stipulated sentence,
bar an appeal of the sentence imposed if newly enacted legislation would otherwise be
available to enable the appellant to obtain a remand for resentencing under In re Estrada
(1965) 63 Cal.2d 740?”
(<https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=22837
54&doc_no=S255214&request_token=NiIwLSIkTkw4W1ApSCM9WENIIDw0UDxTJi
NOTztSMCAgCg%3D%3D> [as of Jul. 29, 2019].)

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he contends that his claim under section 12022.53(h), as amended after his negotiated
plea, does not “call into question” the validity of his negotiated plea because “the plea
agreement itself incorporated the newly-enacted [sic] law” (italics omitted). He
maintains that the parties’ plea agreement should be interpreted to include the trial court’s
recently acquired discretion to strike the firearm enhancements under section
12022.53(h). Defendant cites People v. Hurlic (2018) 25 Cal.App.5th 50, 57 (Hurlic)
and Baldivia, supra, 28 Cal.App.5th 1071in support of his position.
“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.] [T]he 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. [Citation.]” (Panizzon, supra, 13
Cal.4th at p. 76.) “The parties to a plea agreement are free to make any lawful bargain
they choose, and the exact bargain they make affects whether a subsequent appeal, in
substance, is an attack on the validity of the plea.” (Buttram, supra, 30 Cal.4th at p. 785.)
“ ‘When a guilty [or nolo contendere] plea is entered in exchange for specified
benefits such as the dismissal of other counts or an agreed maximum punishment, both
parties, including the state, must abide by the terms of the agreement.’ [Citations.]”
(Panizzon, supra, 13 Cal.4th at p. 80.) Ordinarily, “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” (id. at p. 79) and “thus requires a certificate of probable cause. [Citation.]”
(Shelton, supra, 37 Cal.4th at p. 766.)
However, the Supreme Court has “made clear that where the terms of the plea
agreement leave issues open for resolution by litigation, appellate claims arising within
the scope of that litigation do not attack the validity of the plea, and thus do not require a
certificate of probable cause.” (Buttram, supra, 30 Cal.4th at p. 783.) Thus, postplea

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claims, including sentencing issues, that do not challenge the validity of the plea do not
need to meet the certificate requirement. (See People v. Cuevas (2008) 44 Cal.4th 374,
379.) “In other words, the question is whether defendant ‘seeks only to raise [an] issue[ ]
reserved by the plea agreement, and as to which he did not expressly waive the right to
appeal.’ [Citations.]” (Id. at p. 381.)
Defendant Hurlic pleaded no contest to a count of attempted murder and admitted
a 20-year enhancement allegation based on his personal discharge of a firearm
(§ 12022.53, subd. (c)) in exchange for a 25-year sentence. (Hurlic, supra, 25
Cal.App.5th at pp. 53-54; see § 190, subd. (a).) On appeal, the defendant argued, similar
to the argument that defendant makes here, that he was “entitled to ask the trial court to
exercise its newfound discretion to strike the 20-year firearm enhancement” under
section 12022.53(h) as amended after “the trial court imposed the agreed-upon sentence
of 25 years in prison.” (Hurlic, supra, at p. 54.)
In Hurlic, a division of the Second Appellate District perceived that two lines of
authority were in irreconcilable conflict and it was necessary to decide which line
prevailed. (Hurlic, supra, 25 Cal.App.5th at pp. 55-56.) The first line of authority
established that a certificate of probable cause was required where a plea agreement
provided for a specific, agreed-upon sentence and a defendant challenged the specified
sentence because such a claim was “ ‘in substance a challenge to the validity of the plea’
(Panizzon, at p. 76, original italics).” (Id. at p. 56.) The appellate court in Hurlic
recognized, however, that “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.)” (Ibid.)

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The second line of authority raised in Hurlic was Estrada, supra, 63 Cal.2d 740
(Estrada) and its progeny, which established that in the absence of indications of contrary
intent, courts presumptively infer that the legislative body intended an ameliorative
criminal law to retroactively apply to all nonfinal judgments. (See Hurlic, supra, 25
Cal.App.5th at p. 56; Estrada, supra, at pp. 744-745.) The court in Hurlic decided that
the Estrada line of authority regarding retroactivity “trump[ed]” the first line of authority
requiring a certificate of probable cause to challenge an agreed-upon sentence. (Hurlic,
supra, at p. 57.)
The appellate court in Hurlic concluded that the defendant was not required to
obtain a certificate of probable cause for three reasons. (Hurlic, supra, 25 Cal.App.5th at
pp. 57-59.) The first was the general rule set forth in Doe, supra, 57 Cal.4th 64, 66.
“ ‘[T]he 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.’ ” ’ [Citation.]” (Hurlic, supra, at p. 57.) The court in Hurlic reasoned that
“[b]ecause [the] 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 (2017-2018 Reg. Sess.),
and thus give defendant the benefit of its provisions without calling into question the
validity of the plea.” (Ibid., fn. omitted.)
The appellate court’s second reason for finding no certificate was required was
that “dispensing with the certificate of probable cause requirement in the circumstances
present here better implement[ed] the intent behind that requirement” to screen out
frivolous appeals challenging negotiated pleas. (Hurlic, supra, 25 Cal.App.5th at p. 57.)
Third, the court determined that since newly amended section 12022.53(h) conflicted
with section 1237.5, the former prevailed because it was the later-enacted and more
specific of the two provisions. (Hurlic, supra, at p. 58.) The court held that a certificate

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of probable cause is not required where a defendant’s challenge to an agreed-upon
sentence is based upon a statute that retroactively grants discretion to the trial courts to
“waive a sentencing enhancement that was mandatory at the time it was incorporated into
the agreed-upon sentence.” (Id. at p. 53.)
In Baldivia, this court reached the same result as Hurlic but found that the “first
reason” given in that decision was “dispositive.” (Baldivia, supra, 28 Cal.App.5th at
p. 1077.) Defendant Baldivia’s pleas and admissions, including admissions of firearm
enhancement allegations under section 12022.53, were “entered in exchange for an
agreed prison sentence . . . and the dismissal of other counts and enhancement
allegations.” (Baldivia, supra, at p. 1074.) On appeal, the defendant contended that he
was entitled to a remand for a hearing in juvenile court under Proposition 57, and if
transferred to adult criminal court, “a resentencing hearing at which the trial court may
exercise its newly granted discretion to strike the firearm enhancement.” (Baldivia,
supra, at p. 1074.)
In concluding that defendant Baldivia did not need a certificate of probable cause
to raise those contentions, we recognized that 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.”
(Baldivia, supra, 28 Cal.App.5th at p. 1078.) We noted that in those two cases, “the
changes in the law were expressly intended to apply retroactively.” (Ibid.) We also
observed that the California Supreme Court had applied Estrada’s reasoning in People v.
Superior Court (Lara) (2018) 4 Cal.5th 299 to conclude that “Proposition 57 implicitly
incorporated this inference of retroactivity because it did not state otherwise.” (Baldivia,
supra, at p. 1079.) We noted that “Senate Bill No. 620 also did not state otherwise, and
in fact expressly contemplated that it would have retroactive effect since it provided that
this newly granted discretion would apply at any ‘resentencing’ proceeding.” (Ibid.)

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This court reasoned in Baldivia: “While the analysis in Lara, unlike that in
Harris, did not depend on express indications of the electorate’s intent, but rather was
premised on the implication that the electorate had incorporated the “inference of
retroactivity” by not expressly indicating otherwise, the result in both cases was that the
change in the law was deemed to be retroactive. We can see no reason why this
distinction should alter the impact on plea agreements. If 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. It follows that defendant’s appellate contentions were not
an attack on the validity of his plea and did not require a certificate of probable cause.”
(Baldivia, supra, 28 Cal.App.5th at p. 1079.)
We recognize that a split of opinion has now developed among the Courts of
Appeal regarding whether a defendant who pleaded guilty or nolo contendere pursuant to
a plea agreement that provides for a specified sentence must obtain a certificate of
probable cause before arguing on appeal that an ameliorative law retroactively applies to
potentially alter the agreed-upon sentence. (Cf. People v. Stamps (2019) 34 Cal.App.5th
117, review granted, Jun. 12, 2019, S255843 [remand to allow court to exercise its
discretion to strike five-year serious felony enhancement under recently amended law];
Baldivia, supra, 28 Cal.App.5th 1071; Hurlic, supra, 25 Cal.App.5th 50 with People v.
Galindo (2019) 35 Cal.App.5th 658 [dismissing appeal for failure to obtain a certificate
of probable cause]; People v. Fox (2019) 34 Cal.App.5th 1124, [same]; People v. Kelly
(2019) 32 Cal.App.5th 1013 [same], review granted, Jun. 12, 2019, S255145.)
In this case, unlike Baldivia where the Attorney General conceded the merit of the
defendant’s contentions (Baldivia, supra, 28 Cal.App.5th at p. 1074), the Attorney
General argues in this case that a certificate of probable cause is required to reach
defendant’s claim as to the firearm enhancements because the agreed-upon sentence of

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50 years to life was integral to the plea agreement. Nevertheless, we agree with Baldivia
that since a plea agreement generally incorporates future changes in the law that the
legislative body intends to apply retroactively to the parties, defendant is not attacking the
validity of his plea when he argues that section 12022.53, as amended, retroactively
applies to his case and requires a remand for resentencing. We hold that a certificate of
probable cause was not required to raise this argument on appeal.
3. Retroactive Application of Section 12022.53
Defendant asserts that section 12022.53(h) retroactively applies to his convictions
based on (1) its statutory language which makes it applicable at any “resentencing”
proceeding and (2) Estrada’s presumptive inference of retroactivity, which applies since
the People have not rebutted it. (See Estrada, supra, 63 Cal.2d 740.) Under the logic of
Baldivia, we agree.
Undoubtedly, section 12022.53(h), as amended, was intended to eliminate
mandatory firearm enhancements so that relief would be available to deserving
defendants and allow trial courts at the time of sentencing to exercise their discretion to
strike or dismiss a firearm enhancement in the interests of justice pursuant to
section 1385. (See Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill
No. 620 (2017-2018 Reg. Sess.) as amended June 15, 2017, pp. 1, 3-4, 6; Sen. 3d
Reading, Analysis of Sen. Bill No. 620 (2017-2018 Reg. Sess.) as amended June 15,
2017, pp. 1-3; Assem. Com. on Appropriations, Rep. on Sen. Bill No. 620 (2017-2018
Reg. Sess.) as amended June 15, 2017, pp. 1-2.) We see nothing in the amendment itself
or its legislative history to rebut the inference that the Legislature intended section
12022.53(h), as amended, to apply retroactively to all nonfinal judgments or to indicate
that the parties’ plea agreement did not fall within Doe’s general rule. The People have
not argued, or shown by citation to the appellate record, that the parties affirmatively
agreed or implicitly understood that defendant would be unaffected by a future change in
the law. (See Doe, supra, 57 Cal.4th at p. 71.)

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In addition, the People have not argued, and the record does not demonstrate, that
the trial court would not have, in any event, stricken or dismissed any of the firearm
enhancements if it had had the discretion to do so at the time of defendant’s sentencing.
(Cf. People v. McVey (2018) 24 Cal.App.5th 405, 418-419 [no remand to exercise
discretion under section 12022.5, subdivision (c), to strike or dismiss firearm
enhancement]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand to
exercise discretion to strike Three Strikes conviction].) Consequently, we will remand
the case for a resentencing hearing at which the trial court may consider whether to strike
or dismiss the firearm enhancements, as now permitted by section 12022.53(h).
(See Baldivia, supra, 28 Cal.App.5th at p. 1079.)
B. Remand for a Franklin Hearing
When defendant was sentenced on June 5, 2015, the recently enacted youth parole
hearing statutes did not apply to him because he was not under 18 years of age at the time
of his offenses. (See Stats. 2013, ch. 312, §§ 3, 4, 5, pp. 2523-2525.) Those statutes
were later amended to apply to older offenders like him. (See Stats. 2015, ch. 471, §§ 1,
2, pp. 4174-4176; Stats. 2017, ch. 684, §§ 1.5, 2.5 pp. 5123-5126.)
In Franklin, the California Supreme Court determined that an offender who would
be entitled to a hearing under youth offender parole hearing statutes should be afforded a
“sufficient opportunity to make a record of information relevant to his eventual youth
offender parole hearing.”12 (Franklin, supra, 63 Cal.4th at p. 284.) Defendant asks this
court to remand this case for a Franklin hearing to give him an opportunity to develop a
record of mitigating evidence relevant to his future youth offender parole hearing.
The People do not object to such remand.
12 Although section 3051“excludes several categories of juvenile offenders from
eligibility for a youth offender parole hearing” (Franklin, supra, 63 Cal.4th at p. 277),
there has been no suggestion that defendant falls within any of those exclusions.
(See § 3051, subd. (h).)

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In Franklin, the Supreme Court found it was “not clear whether Franklin had
sufficient opportunity to put on the record the kinds of information that sections 3051 and
4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at
p. 284.) Consequently, it “remand[ed] the matter to the trial court for a determination of
whether Franklin was afforded sufficient opportunity to make a record of information
relevant to his eventual youth offender parole hearing.” (Ibid., see id. at pp. 286-287.)
It provided the following guidance: “If the trial court determines that Franklin did not
have sufficient opportunity, then the court may receive submissions and, if appropriate,
testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the
California Rules of Court, and subject to the rules of evidence. Franklin may place on the
record any documents, evaluations, or testimony (subject to cross-examination) that may
be relevant at his eventual youth offender parole hearing, and the prosecution likewise
may put on the record any evidence that demonstrates the juvenile offender’s culpability
or cognitive maturity, or otherwise bears on the influence of youth-related factors.”
(Id. at p. 284.)
The foregoing proceeding is commonly referred to as a “Franklin hearing.”
(See In re Cook (2019) 7 Cal.5th 439, 459.) As indicated, it “derives from the statutory
provisions of sections 3051 and 4801. [Citations.]” (Ibid.) Section 3051,
subdivision (a)(1), currently provides in relevant part: “A youth offender parole hearing
is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole
suitability of any prisoner who was 25 years of age or younger . . . at the time of his or
her controlling offense.” The section defines “controlling offense” to mean “the offense
or enhancement for which any sentencing court imposed the longest term of
imprisonment.”13 (§ 3051, subd. (a)(2)(B).) Section 3051, subdivision (b)(3), specifies:
13 The Supreme Court in Franklin pointed out: “[T]he trial court sentenced
Franklin to a mandatory term of 25 years to life under section 190 for first degree murder
and to a consecutive mandatory term of 25 years to life under section 12022.53 on the
firearm enhancement. Either the homicide offense or the firearm enhancement could be

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“A person who was convicted of a controlling offense that was committed when the
person was 25 years of age or younger and for which the sentence is a life term of
25 years to life shall be eligible for release on parole by the board during his or her
25th year of incarceration at a youth offender parole hearing, unless previously released
or entitled to an earlier parole consideration hearing pursuant to other statutory
provisions.” Section 4801, subdivision (c), states: “When a prisoner committed his or her
controlling offense, as defined in subdivision (a) of Section 3051, when he or she was
25 years of age or younger, the board, in reviewing a prisoner’s suitability for parole
pursuant to Section 3041.5, shall give great weight to the diminished culpability of youth
as compared to adults, the hallmark features of youth, and any subsequent growth and
increased maturity of the prisoner in accordance with relevant case law.”
We agree a Franklin hearing is warranted. Consequently, it is unnecessary to
reach defendant’s constitutional contentions.
DISPOSITION
We reverse the judgment for the limited purpose of resentencing. Upon remand,
the court shall hold a resentencing hearing at which it may exercise its discretion to strike
the firearm enhancements. If the court strikes any of those enhancements, it shall
resentence defendant. If it declines to strike any of the enhancements, it shall reinstate
the judgment. The court shall also determine whether defendant had an adequate
opportunity to make a record of information that will be relevant to his eventual youth
offender parole hearing, and, if not, to allow the parties the opportunity to make a record
of such information pursuant to Franklin, supra, 63 Cal.4th 261.
considered the ‘controlling offense’ under section 3051, subdivision (a)(2)(B).”
(Franklin, supra, 63 Cal.4th at p. 279.)

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_________________________________
ELIA, J.
WE CONCUR:
_______________________________
PREMO, ACTING P. J.
_______________________________
GROVER, J.
People v. Antuna
H042678

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