P. v. Madrigal

Filed 7/9/19 P. v. Madrigal 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
LUIS ALFONSO MADRIGAL,
Defendant and Appellant.
H044892
(Santa Clara County
Super. Ct. No. C1226816)
Defendant Luis Alfonso Madrigal pleaded no contest and not guilty by reason of
insanity to one count of a lewd act on a child under 14. He also pleaded no contest to one
count of kidnapping. He admitted he had suffered a prior strike conviction and a prior
serious felony conviction. As to the lewd act, the trial court found Madrigal was legally
insane at the time and committed him to a state hospital. For kidnapping, the court
imposed a total term of 21 years in state prison, including a mandatory five-year term for
the prior serious felony conviction, to be served upon release from the hospital
After Madrigal was sentenced, the Legislature enacted Senate Bill No. 1393 (SB
1393), granting trial courts the discretion not to impose a five-year term for a prior
serious felony conviction. Madrigal now contends we must remand for resentencing
because this change in law applies retroactively to his case. The Attorney General
contends the claim is barred by the failure to obtain a certificate of probable cause. As to
the merits of the claim, the Attorney General contends we should not remand for

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resentencing because the original sentence showed the trial court would have imposed the
five-year term even if it had the discretion not to.
For the reasons below, we conclude Madrigal is entitled to retroactive application
of SB 1393. We further conclude this claim is cognizable notwithstanding the absence of
any certificate of probable cause for the reasons set forth in People v. Hurlic (2018)
25 Cal.App.5th 50 (Hurlic) and People v. Baldivia (2018) 28 Cal.App.5th 1071
(Baldivia). We will reverse the judgment and remand the matter for the trial court to
consider whether to strike the prior serious felony enhancement.
I. BACKGROUND
The facts of the offenses are immaterial to this opinion. The prosecution charged
Madrigal with two counts: Count 1—lewd or lascivious act on a child under 14 (Pen.
Code, § 288, subd. (a))1; and count 2—kidnapping (§ 207, subd. (a)). The information
further alleged Madrigal had suffered a prior strike conviction and a prior serious felony
conviction (§ 667, subds. (a), (b)-(i)).
In June 2017, the parties reached a plea agreement. On count 1, Madrigal pleaded
no contest and not guilty by reason of insanity. He pleaded no contest on count 2 and
admitted the prior allegations. After a court trial on the insanity plea to count 1, the court
found Madrigal was legally insane when he committed the offense. At sentencing for
count 1, the court found Madrigal had not been restored to sanity. In accord with the plea
agreement, the court committed him to the Department of State Hospitals for a maximum
term of 16 years. On count 2, the court imposed a term of 16 years, equal to twice the
aggravated term of eight years based on the prior strike conviction. The court imposed an
additional five-year term for the prior felony conviction, resulting in a total term of
21 years. However, the court stayed the 21-year term pending a finding that Madrigal’s
sanity is restored and his commitment to the mental hospital is not extended.
1 Subsequent undesignated statutory references are to the Penal Code.

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Madrigal filed a notice of appeal in July 2017. He did not obtain a certificate of
probable cause.
II. DISCUSSION
In 2017, the trial court imposed a mandatory five-year term based on Madrigal’s
admission of a prior serious felony conviction. Effective January 1, 2019, SB 1393
amended section 667, subdivision (a) and section 1385, subdivision (b) to give trial
courts the discretion to strike or dismiss a prior serious felony conviction at sentencing.
(Stats. 2018, ch. 1013, §§ 1-2.) Madrigal now contends we must remand for resentencing
based on this change in law. Although SB 1393 took effect after Madrigal was
sentenced, he contends it applies to his case under the retroactivity doctrine of In re
Estrada (1965) 63 Cal.2d 740 (Estrada) and its progeny.
On the merits of this claim, the Attorney General concedes that the change in law
would apply retroactively to Madrigal’s case. The concession is well-taken. “[U]nder
the Estrada rule, . . ., it is appropriate to infer, as a matter of statutory construction, that
the Legislature intended [SB] 1393 to apply to all cases to which it could constitutionally
be applied, that is, to all cases not yet final when [SB] 1393 becomes effective on January
1, 2019.” (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Madrigal’s case is not
final because the time for petitioning for a writ of certiorari in the United States Supreme
Court has not yet passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.)
The Attorney General nonetheless contends we must dismiss this appeal based on
Madrigal’s failure to obtain a certificate of probable cause.2 Assuming the claim is not
barred, the Attorney General argues we should not remand for resentencing because the
21-year term imposed by the trial court shows it would not have stricken the five-year
enhancement even if it had the discretion to do so.
2 Contrary to the arguments set forth in the body of the respondent’s brief, the
brief’s main argument heading states Madrigal is entitled to remand for resentencing. We
will assume this heading is the result of a typographical error.

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A. No Certificate of Probable Cause Was Required
The Attorney General contends Madrigal’s claim is not cognizable without a
certificate of probable cause under section 1237.5 (precluding certain claims on appeal
after a plea of no contest or guilty unless the trial court has granted a certificate of
probable cause). Madrigal claims no certificate is required for the reasons set forth in
Hurlic, supra, 25 Cal.App.5th 50.
In Hurlic, the court of appeal considered a claim similar to that raised by Madrigal
here. Hurlic had entered a plea agreement including a term for an admitted firearm
enhancement, but on appeal he sought remand for resentencing under a legislative
amendment to section 12022.53 granting trial courts the discretion not to impose the
enhancement. The trial court had not issued a certificate of probable cause. The court of
appeal held that no certificate of probable cause is required when a defendant challenges
an agreed-upon sentence based on a legislative amendment that retroactively grants a trial
court the discretion to waive a sentencing enhancement. (Hurlic, supra, 25 Cal.App.5th
at p. 53.) Under the logic of Hurlic, Madrigal is also entitled to retroactive application of
SB 1393.
The Attorney General contends that Madrigal’s entry into a negotiated plea
agreement required him to seek a certificate of probable cause because without a
certificate his appeal is limited to “postplea claims, including sentencing issues, that do
not challenge the validity of the plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 379.)
The Attorney General argues that any change to the terms of the negotiated sentence
would affect the substance of the plea agreement. He argues Hurlic was incorrectly
decided, and he urges us to follow People v. Enlow (1998) 64 Cal.App.4th 850 (Enlow)
(defendant required to obtain certificate of probable cause to appeal from stipulated
sentence).
This court, however, recently rejected the logic of Enlow and agreed with Hurlic
in Baldivia, supra, 28 Cal.App.5th 1071: “Hurlic’s appeal was indisputably meritorious,

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and no defendant could possibly obtain a certificate to make a challenge based on a law
that did not exist at the time of sentencing.” (Baldivia, supra, 28 Cal.App.5th at p. 1077.)
“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.” (Id. at p. 1079.) The same reasoning applies here. The
Attorney General urges us to reconsider Baldivia, but we decline to do so.
For the reasons above, we conclude Madrigal’s claim is cognizable on appeal, and
he is entitled to retroactive application of SB 1393.
B. Retroactive Application of SB 1393 Requires Remand for Resentencing
The Attorney General argues that even if Madrigal is entitled to retroactive
application of SB 1393, no remand is necessary because the trial court’s imposition of a
21-year term as part of a negotiated disposition shows it would not strike the
enhancement even if it had the discretion to do so. “We 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. [Citation.]” (People v.
Jones (2019) 32 Cal.App.5th 267, 272-273.) Apart from the fact that the sentence was
negotiated, however, the Attorney General points to nothing in the record to support this
assertion. As Madrigal points out, the trial court made clear it was imposing the
enhancement because the enhancement was mandatory. At sentencing, the court stated,
“The 16-year term is two times the aggravated term of 8 years, exacerbated by the strike
prior conviction that was admitted. [¶] In addition, the Court must impose the mandatory
five-year serious felony prior, for a total of 21 years.” (Italics added.)

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This record does not clearly indicate the trial court would decline to strike the
enhancement on resentencing. Accordingly, we must remand for resentencing. We will
reverse the judgment and remand solely to allow the court to decide whether to strike the
enhancement.
III. DISPOSITION
The judgment is reversed and the matter is remanded for the sole purpose of
resentencing.

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_______________________________
Greenwood, P.J.
WE CONCUR:
_____________________________________
Premo, J.
______________________________________
Elia, J.
The People v. Madrigal
No. H044892

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