P. v. Joaquin

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Filed 6/25/19 P. v. Joaquin CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY ALLAN JOAQUIN,
Defendant and Appellant.
A152786
(Mendocino County
Super. Ct. No.
SCUKCRCR1789461001)
Jeffrey Allan Joaquin (appellant) appeals from a judgment sentencing him to 12
years in prison after he pleaded no contest to attempted unpremeditated murder and
admitted allegations that he had personally used a firearm and had previously served a
prison term. (Pen. Code, §§ 187, subd. (a)/664, 667.5, subd. (b), 12022.5, subd. (a).)1 He
contends the case must be remanded for resentencing because the Legislature
subsequently passed Senate Bill No. 620 (2017–2018 Reg. Sess.), which amended section
12022.5 to give the trial court the discretion to strike firearm use enhancements in the
interests of justice. (§ 12022.5, subd. (c).) We agree and remand for resentencing.
I. BACKGROUND
On March 21, 2017, appellant fired a shotgun at the victim from a distance of
about 60 feet. He was charged by felony complaint with three counts: premeditated
attempted murder with an allegation that he personally and intentionally discharged a
1 Further statutory references are to the Penal Code.

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firearm (§§ 664/187, subd. (a), 12022.53, subd. (c)), possessing a firearm having been
previously convicted of a felony (§ 29800, subd. (a)(1)), and assault with a firearm
(§ 245, subd. (a)(2)). A firearm use allegation and a prison prior were also alleged.
(§§ 12022.5, subd. (a), 667.5, subd. (b).)
Defendant entered into a plea agreement that called for him to plead no contest to
attempted murder without premeditation and to admit a firearm use allegation under
section 12022.5, subdivision (a) and a prison prior under section 667.5, subdivision (b).
The parties stipulated to a sentence of 12 years: the seven-year middle term for
unpremeditated attempted murder, the four-year middle term for the firearm use
allegation and one year for the prison prior. The court accepted the plea on August 10,
2017 and imposed the 12-year sentence at a sentencing hearing held September 7, 2017.
At a hearing held on September 15, 2017, the court recalculated appellant’s presentence
credits to comply with section 2933.1.
At the time of sentencing, firearm enhancements under section 12022.5,
subdivision (a) were mandatory and could not be stricken in the interests of justice. (See
former § 12022.5, subd. (c).) On October 11, 2017, the Governor signed Senate Bill No.
620. Effective January 1, 2018, the bill amended section 12022.5, subdivision (c), to
state, “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.” (§ 12022.5, subd. (c); Stats. 2017, ch. 682, § 2.)
Appellant filed a notice of appeal on October 26, 2017 in which he indicated the
appeal was based on the sentence or on other matters occurring after the plea that did not
affect the validity of the plea. He did not request a certificate of probable cause under
section 1237.5. Appellate defense counsel requested permission to file a late request for
a certificate of probable cause, which this Court denied on June 8, 2018. The People
filed a motion to dismiss the appeal for failure to obtain a certificate of probable cause.
On September 21, 2018, we denied the motion. (People v. Hurlic (2018) 25 Cal.App.5th

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50, 59 (Hurlic); see also People v. Baldivia (2018) 28 Cal.App.5th 1071, 1077–1079
(Baldivia).)2
II. DISCUSSION
Appellant argues Senate Bill No. 620 requires a remand for resentencing so the
trial court can consider whether to strike the firearm use enhancement imposed under
section 12022.5, subdivision (a), pursuant to the discretion newly conferred under section
12022.5, subdivision (c). The People agree that the amendment applies retroactively to
this case (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1088; People v. Chavez
(2018) 22 Cal.App.5th 663, 712; In re Estrada (1965) 63 Cal.2d 740, 742), but contend a
remand is not required because it would serve no purpose other than to squander scarce
judicial resources when the firearm use enhancement was a part of the agreed-upon 12-
year sentence. We agree with appellant that the plea bargain does not preclude the trial
court from exercising its discretion to strike the firearm enhancement and does not render
a remand futile.
In Hurlic, supra, 25 Cal.App.5th at page 57, the court concluded a remand was
required in a case where the court had imposed a stipulated sentence that had been
2 In their respondent’s brief, the People do not renew their argument that the appeal
should be dismissed because a certificate of probable cause is required. In any event, no
certificate of probable cause is required. (Hurlic, supra 25 Cal.App.5th at pp. 54–59.)
First, we agree with the analysis of the dissent in People v. Fox (2019) 34 Cal.App.5th
1124, 1144, petn. for review pending, petn. filed June 12, 2019, (Sanchez, J. dissenting)
(Fox) that “a plea agreement is deemed to incorporate changes in the law such as Senate
Bill 620 that are intended to apply to the parties. [Appellant’s] appeal, which seeks
resentencing to allow the trial court to exercise its discretion consistent with the new
legislation, is not an attack on the validity of the plea itself but rather an effort to raise
issues reserved by the plea agreement, and as to which [appellant] did not waive his right
to appeal.” Second, because providing appellant the relief requested would not invalidate
the plea, the appeal is not “in substance . . . an attack on the validity of the plea.” (People
v. Buttram (2003) 30 Cal.4th 773, 782; see also People v. Stamps (2019) 34 Cal.App.5th
117, pp. 121–122, review granted June 12, 2019, S255843; Hurlic, supra, 25 Cal.App.5th
at pp. 54–59.) Finally, we question whether the appeal would require a certificate of
probable cause even if appellant is not entitled to the relief requested; a conclusion that
appellant’s statutory interpretation is incorrect does not transform his appeal into an
attack on the validity of the plea. (But see Fox, supra, 34 Cal.App.5th at p. 1139.)

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reached as part of a plea bargain made before Senate Bill No. 620 became effective.
Hurlic acknowledged the contractual nature of plea bargains, but observed that, “[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 . . . ‘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.’ ” ’ ” (Hurlic, supra, 25 Cal.App.5th at p. 57,
citing Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe); see Harris v. Superior Court (2016)
1 Cal.5th 984, 991 (Harris).) Because the defendant’s plea bargain did not contain
language to the contrary, it was deemed to incorporate Senate Bill No. 620 and “thus give
defendant the benefit of its provisions without calling into question the validity of the
plea.” (Hurlic at p. 57.) Hurlic concluded that the appeal did not require a certificate of
probable cause under section 1237.5 even though ordinarily, a challenge to an agreed-
upon sentence imposed as part of a negotiated plea is a challenge to the validity of that
plea and requires a certificate. (Id. at pp. 53, 57-58.) Although the court’s discussion of
why it would not be futile to remand the case was not published and is not citable (Cal.
Rule of Court, rule 8.1115(a)), implicit in the published portion of the analysis is the
principle that a court may resentence a defendant under Senate Bill No. 620 in a case
where it retroactively applies and may strike a firearm enhancement even where the
defendant has received a stipulated sentence.
Hurlic was followed in Baldivia, supra, 28 Cal.App.5th at pages 1074, 1079-1080,
in which the case was remanded for a transfer hearing under Proposition 57 and, if
necessary, for a resentencing hearing under Senate Bill No. 620, notwithstanding
defendant’s no contest plea and stipulated sentence. The primary issue in Baldivia was
whether the appeal involved a challenge to the validity of the plea that required a
certificate of probable cause, it being undisputed by the parties that the underlying
contention was meritorious and the retroactive application of Senate Bill No. 620
required a remand so the court could consider whether to strike the firearm enhancement.
(Id. at p. 1079.) Implicit in the court’s conclusion that no certificate of probable cause

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was required was the assumption that under the principle that a plea agreement
incorporates subsequent changes in the law, the plea agreement in that case contemplated
that discretion retroactively given the court could be exercised in a case where the
defendant had pleaded guilty or no contest and received a stipulated sentence. (Ibid.)
In People v. Stamps (2019) 34 Cal.App.5th 117, review granted June 12, 2019,
S255843 (Stamps), Division Four of this District followed Hurlic in the context of Senate
Bill No. 1393, which gives courts the discretion to strike the five-year serious felony
enhancement under section 667, subdivision (a) and which, like Senate Bill No. 620, has
been held to apply retroactively to cases not yet final when it went into effect. (People v.
Garcia (2018) 28 Cal.App.5th 961, 973.) Stamps rejected the People’s argument that
“retroactive application of the new law in this case would deprive the prosecution of the
benefit of its plea bargain.” (Stamps, at p. 122, review granted; see Doe, supra, 57
Cal.4th at pp. 73-74 [“It follows, . . . as a general rule, 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
that the law might change translate into an implied promise the defendant will be
unaffected by a change in the statutory consequences attending his conviction. To that
extent, then, the terms of the plea agreement can be affected by changes in the law.”].)
Stamps declined to follow the decision in People v. Kelly (2019) 32 Cal.App.5th 1013,
1018, review granted June 12, 2019, S255145, which concluded a resentencing to comply
with Senate Bill No. 1393 would be a “ ‘bounty in excess of that to which [the defendant]
is entitled.’ ” (Stamps, at pp. 123–124, review granted.) Stamps observed that Kelly
“failed to consider the reasoning on which Hurlic is based, and it failed to cite or
consider” the cases underlying that decision. (Stamps, at p. 124, review granted.) We
agree with the reasoning of Hurlic and Stamps.
Recently, another Division of this court issued a split decision in Fox, supra, 34
Cal.App.5th 1124 (Fox), and held that a defendant who had received a firearm
enhancement as part of a plea bargain that was entered after Senate Bill No. 620 was
passed and was sentenced on the day it was signed into law was not entitled to be

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resentenced because the court was bound by the terms of the plea bargain it had accepted.
The majority in Fox concluded that while a defendant who had received a stipulated
sentence in exchange for his or her plea could obtain a certificate of probable cause and
seek to set aside the plea based on the retroactive effect of the amendments to the statute,
the defendant was not entitled to have a firearm enhancement stricken without setting
aside the plea. (Id. at p. 1139.) It found inapplicable the general rule that plea
agreements incorporate substantive changes in the law; first, the defendant had entered
his plea when Senate Bill No. 620 had already passed the Legislature; but more
importantly, that rule pertained only to changes the Legislature or electorate intended to
apply to existing plea agreements. (Id. at pp. 1135–1136.) Because the majority
concluded the Legislature did not intend for Senate Bill No. 620 to apply to all
defendants, even those who had entered into a plea bargain, its retroactive application did
not supersede the general rule that a court may not sentence a defendant outside the
confines of a plea bargain it has accepted. (Id. at p. 1137.)3
With all due respect to the thoughtful analysis of the majority in Fox, we agree
with the dissent, which followed Hurlic, Baldivia and Stamps and concluded that (1) no
certificate of probable cause was needed to raise the claim that the retroactive application
of Senate Bill No. 620 required the court to hold a new sentencing hearing for a
defendant who received a stipulated sentence as a condition of his plea; and (2) the rule
that plea agreements incorporate changes to the law such as Senate Bill No. 620, as well
as the rule that the law should be given retroactive effect, require a remand for
resentencing without giving the People the opportunity to withdraw the plea. (Fox,
supra, 34 Cal.App.5th at pp. 1142–1154 (dis. opn. of Sanchez, J.).) “The majority
questions whether the Legislature would have intended for defendant in effect to ‘have
his cake and eat it too.’ But it is not unusual for legislative enactments to alter the
consequences of a plea agreement to the detriment of one party or the other. Parties to a
plea deal understand that sometimes they must bend to the will of the Legislature. Senate
3 Even more recently, in People v. Galindo (2019) 35 Cal.App.5th 658, a First District,
Division One panel followed Fox in the Senate Bill No. 1393 context.

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Bill No. 620 requires only that the trial court exercise its discretion to decide whether to
strike a firearm enhancement, in full view of the circumstances that gave rise to the plea
agreement and in accordance with the equities of the situation and the interests of
justice.” (Fox, at p. 1140 (dis. opn. of Sanchez, J.).)
Defendants are entitled to decisions made in the informed discretion of the court.
(Billingsley, supra, 22 Cal.App.5th at p. 1081.) Remand is required unless “ ‘ “the record
shows that the trial court would not have exercised its discretion even if it believed it
could do so.” ’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Here, the plea
bargain did not “contain a term incorporating only the law in existence at the time of
execution,” and did not preclude the trial court from striking the enhancement. The
court’s acceptance of the negotiated sentence “does not clearly establish that the court
would not have exercised its discretion to strike the enhancement if it had that
discretion.” (Stamps, supra, 34 Cal.App.5th at p. 124, review granted.) We will remand
the case for resentencing.
“In exercising its discretion, the trial court is not precluded from considering
whether doing so would be incompatible with the agreement on which defendant’s plea
was based. If the trial court strikes the enhancement, it shall resentence defendant. In
selecting an appropriate sentence, the court retains its full sentencing discretion except
that it may not impose a term in excess of the negotiated [term] without providing
defendant the opportunity to withdraw his plea. [Citation.] . . . . If the trial court does not
strike the enhancement, it shall reinstate the sentence.” (Stamps, supra, 34 Cal.App.5th
at p. 124, review granted.)
By a separate order filed this same date, we have denied appellant’s companion
petition for writ of habeas corpus. (In re Jeffrey Allan Joaquin, A156067 [nonpub.
order].)
III. DISPOSITION
The judgment is reversed and the matter is remanded to permit the court to
determine whether to strike the firearm use enhancement under section 12022.2,

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subdivision (a), and to resentence defendant accordingly. In all other respects, the
judgment is affirmed.

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SIMONS, Acting P.J.
I concur.
BURNS, J.
(A152786)

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NEEDHAM, J., Dissenting
I respectfully dissent. The appeal should be dismissed because appellant did not
obtain a certificate of probable cause.1
The law is straightforward. An appellant who wants to challenge the validity of
his or her plea must first obtain a certificate of probable cause from the trial court.
(People v. Panizzon (1996) 13 Cal.4th 68, 76; Pen. Code, § 1237.5.) The plea’s validity
is challenged, and a certificate of probable cause is required, if the appellant attacks the
sentence that the parties agreed the court would impose as part of the plea bargain. (E.g.,
Panizzon, supra, 13 Cal.4th at p. 78 [appellant’s challenge to the constitutionality of the
sentence he negotiated as part of his plea bargain constitutes an attack on the validity of
the plea, necessitating a certificate of probable cause]; People v. Cuevas (2008) 44
Cal.4th 374, 381–382 [appellant’s challenge to the sentence that he agreed would be the
maximum possible sentence is in substance an attack on the validity of his plea].)
Here, appellant’s plea was based on an agreement by which the court would
impose a specific sentence of 12 years, including four years for his admission of a firearm
use allegation under Penal Code section 12022.5, subdivision (a). Appellant now asks us
to remand the case because he wants the trial court to change the negotiated terms of the
plea by striking the firearm use enhancement and reducing his sentence pursuant to
Senate Bill 620 (Pen. Code, § 12022.5, subd. (c)). Striking the enhancement and
reducing the sentence pierces the heart of the plea agreement and, in contract terms,
destroys part of the consideration for the plea bargain. Appellant here is plainly attacking
the validity of the plea, and a certificate of probable cause is required.
1 We previously denied the People’s motion to dismiss the appeal for failure to
obtain a certificate of probable cause. Although the People did not renew their argument
in their respondent’s brief, the fact remains that this court cannot consider any issue
requiring a certificate of probable cause, if no certificate was obtained. (Cal. Rules of
Court, rule 8.304(b).)

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The majority nonetheless concludes in a footnote that no certificate is necessary.
(Maj. opn. ante, at p. 3, fn. 2.) It begins by relying on the dissent in People v. Fox (2019)
34 Cal.App.5th 1124 (Fox), to the effect that appellant is merely trying to “ ‘raise issues
reserved by the plea agreement.’ ” (Maj. opn. ante, at p. 3, fn. 2., quoting Fox, at p. 1144
(dis. opn. of Sanchez, J.).) That, however, is incorrect. Appellant is seeking to invoke
the trial court’s discretion to shorten his sentence; his conditional plea agreement did not
reserve any issue in that regard. To the contrary, his conditional plea—and by definition
every conditional plea—precludes the exercise of such discretion. (See People v. Segura
(2008) 44 Cal.4th 921, 930–931 (Segura).) And since the parties to appellant’s
conditional plea agreed to preclude the court from exercising its discretion to deviate
from his proposed sentence, it cannot be said that the plea agreement “reserved” any
possibility of the court later exercising its discretion to shorten his sentence, even if a new
law offers an additional discretionary basis for doing so.
The majority’s footnote next asserts that appellant does not need a certificate
because his request for relief does not actually attack the plea’s validity. The majority
cites People v. Buttram (2003) 30 Cal.4th 773, 782 (Buttram), but Buttram affirms the
principle that a certificate is required where, as here, the appellant attacks a specific
sentence to which the parties agreed. (Id. at pp. 781–782, 789.) While Buttram further
concluded that a certificate of probable cause was not needed to challenge the court’s
exercise of discretion allowed under the plea agreement to select a sentence within an
agreed maximum, that is not at issue here. (Id. at pp. 785–789.)
The majority also cites People v. Hurlic (2018) 25 Cal.App.5th 50 (Hurlic) and a
case following Hurlic in another context, People v. Stamps (2019) 34 Cal.App.5th 117.
(Maj. opn. ante, at p. 3, fn. 2.) Hurlic acknowledged that a certificate of probable cause
is required where, as here, the appellant challenges “a specific, agreed-upon sentence,”
but ruled that this mandate is “trump[ed]” by authority making criminal statutes
retroactive. (Hurlic, at pp. 55–57.)

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Hurlic’s proposition that retroactivity “trumps” the certificate of probable cause
requirement is puzzling to me. It would mean that, even though a certificate of probable
cause is mandated for attacks on plea bargains reached after the effective date of SB 620,
no certificate would be needed for attacks on plea bargains reached before the law was
even in existence. This is certainly counter-intuitive, and I find Hurlic’s reasons for its
conclusion unconvincing.
Hurlic’s primary justification for its retroactivity analysis borrows from the idea
that new laws are sometimes incorporated into old plea agreements. (Hurlic, supra, 25
Cal.App.5th at p. 57.) Hurlic asserts that, unless a plea agreement explicitly requires the
parties to apply only the law in existence when the agreement is made, “ ‘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.’ ” ’ ” (Hurlic,
supra, 25 Cal.App.5th at p. 57, quoting Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe).)
Relying on Doe and Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris), Hurlic
concluded that the subject plea agreement was “ ‘deemed to incorporate’ the subsequent
enactment of [SB 620], and thus give defendant the benefit of its provisions without
calling into question the validity of the plea.” (Hurlic, supra, 25 Cal.App.5th at p. 57.)
However, the cases on which Hurlic relied—Doe and Harris—are
distinguishable. Besides the fact that neither of them addressed the certificate of probable
cause requirement, the plea agreements in those cases were deemed to incorporate
substantive changes in the law made explicitly applicable to the defendants’ agreements.
(Doe, supra, 57 Cal.4th at pp. 66–67; Harris, supra, 1 Cal.5th at p. 987.) Doe
determined that a defendant’s plea agreement was subject to a change in the registration
requirements for sex offenders, where the Legislature made the new public notification
provisions explicitly applicable to every person subject to the registration requirement.
(Doe, supra, 57 Cal.4th at pp. 66–67.) Harris determined that Penal Code section

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1170.18, subdivision (a), which reduced grand theft from the person to a misdemeanor
and required resentencing, applied to a defendant convicted by a plea because the statute
specifically stated that it applied to defendants convicted “by trial or plea.” (Harris,
supra, 1 Cal.5th at p. 991.)
In stark contrast, SB 620 merely amended Penal Code section 12022.5,
subdivision (c) to read: “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.” (Pen. Code, § 12022.5 (added by Stats. 2017, ch.682 § 1).) SB
620 does not require all Penal Code section 12022.5 enhancements to be stricken; nor
does it make its provisions applicable to those who were convicted by plea bargain, let
alone those who stipulated to a particular sentence in their plea deal long ago.
This distinction makes a difference, as explained in Fox, supra. As the majority in
Fox concluded, the “general” rule that plea agreements incorporate changes in the law
pertains only to changes that the Legislature or electorate intended to apply to the parties
to plea agreements, and there is no indication that SB 620 was intended to apply to plea
bargains in which the defendant and the prosecution agreed that a specific sentence
would be entered in exchange for the dismissal of other counts, rights, or remedies. (Fox,
supra, 34 Cal.App.5th at pp. 1135–1139.) I agree that the incorporation theory of Doe
and Harris does not apply here.2 (See People v. Galindo (2019) 35 Cal.App.5th 658,
2 It is also unclear how SB 620 would be incorporated into past plea agreements.
Ordinarily, if the defense and prosecution have negotiated a conditional plea specifying
the exact sentence, a trial court believing the stipulated disposition to be unfair could
reject the agreement in toto, but it could not simply strike a term or shave years off the
sentence without the consent of both parties. (Segura, supra, 44 Cal.4th at p. 931.) The
fact that SB 620 by its terms does allow the court to strike or dismiss an enhancement
suggests to me that the Legislature did not intend SB 620 to apply to conditional pleas –
especially without a legislative directive that it does. But let’s say the provisions of SB
620 were incorporated into past conditional plea agreements. Would a court that is
inclined to strike an enhancement have to reject the past plea agreement in toto, leaving
the parties without a plea deal at a time when witnesses and evidence may be difficult to

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670–672 (Galindo) [rejecting Hurlic, following Fox, and dismissing an appeal seeking
relief under Senate Bill 1393 due to appellant’s failure to obtain a certificate of probable
cause].)
As another reason for trumping the certificate of probable cause requirement,
Hurlic asserted that the intent behind the requirement is to encourage plea agreements
and weed out frivolous and vexatious appeals, and a defendant’s incentive to plead is
reduced if the defendant must seek a certificate of probable cause to take advantage of a
new law. (Hurlic, supra, 25 Cal.App.5th at pp. 57–58.) But it is difficult to believe that
a defendant, content with serving a specified number of years in exchange for whatever
leniency the prosecutor is offering, would shun the deal and proceed to trial merely
because, if in the future some change in the law would shave even more years off his
sentence, he would have to file a piece of paper stating why the new law applies (which
he would have to establish eventually anyway). As for the purpose of weeding out
frivolous appeals, Hurlic opined that a certificate of probable cause is not needed because
“the defendant’s entitlement to [SB 620]’s retroactive application is undisputed” (id., at
p. 58); but if, as Fox concludes, it was not the Legislature’s intent for SB 620 to apply to
defendants who had agreed on a specific sentence as a term of their plea, the intended
gatekeeping function of the certificate of probable cause requirement will only be
fulfilled if, indeed, the requirement is imposed. ( See Fox, supra, 34 Cal.App.5th at p.
1137.)
find, and potentially causing the prosecution to dismiss the charges altogether? Or would
SB 620 empower the court to redo the parties’ deal and lop off (in this case) one-third of
the defendant’s stipulated sentence without allowing the prosecutor to withdraw from the
agreement or renegotiate the disposition? The majority assumes the latter, and perhaps
the fact that SB 620 permits a court to strike an enhancement only “in the interest of
justice under Section 1385” serves as a “ ‘safety valve’ ” protecting the public and
minimizing unfairness. (See Harris, supra, 1 Cal.5th at p. 992.) But that still does not
mean the certificate of probable cause requirement goes away.

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As its third and final reason for trumping the certificate of probable cause
requirement, Hurlic asserted that the more specific and newer SB 620 should prevail over
the more general and older Penal Code section 1237.5. But those rules of construction
apply only where there is no other way of harmonizing the statutes. Here, if there is any
conflict between the certificate of probable cause requirement and the retroactivity of SB
620, the conflict is readily harmonized: SB 620 applies retroactively, except to
convictions by plea bargains in which a condition of the plea was the specific sentence
the defendant received.
I therefore find nothing in Hurlic, or anything else in the majority’s footnote in
this case, justifying the conclusion that appellant can seek a change in his stipulated
sentence without obtaining a certificate of probable cause.3
Finally, I take issue with other language the majority quotes from the dissent in
Fox, that “it is not unusual for legislative enactments to alter the consequences of a plea
agreement to the detriment of one party or the other,” “[p]arties to a plea deal understand
that sometimes they must bend to the will of the Legislature,” and SB 620 “requires only
that the trial court exercise its discretion to decide whether to strike a firearm
enhancement, in full view of the circumstances that gave rise to the plea agreement and in
accordance with the equities of the situation and the interests of justice.” (Maj. opn. ante,
at p. 7, quoting Fox, supra, 34 Cal.App.5th at p. 1140 (dis. opn. of Sanchez, J.).) To the
contrary, giving a court discretion to change the terms of a plea agreement and sentence
the defendant to less than the stipulated term is a very big deal, inconsistent with
foundational principles of plea negotiation and, for that reason, not something the parties
3 The majority’s footnote also questions whether appellant’s appeal would require a
certificate of probable cause even if he is not entitled to a remand for resentencing,
because “a conclusion that appellant’s statutory interpretation is incorrect does not
transform his appeal into an attack on the validity of the plea.” (Maj. opn. ante, at p. 3,
fn. 2.) My point, however, is not that appellant needs a certificate of probable cause
because he is wrong in his interpretation of the statute, but because his request for relief
attacks the validity of his plea.

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would expect. Not only does it allow the defendant to serve less time than the prosecutor
believed would protect the public, it undermines the very nature and purpose of
conditional pleas, which both parties enter into so the court will not make discretionary
changes to the sentence. It is one thing to allow the court to exercise its discretion when
the parties had agreed that the sentence would be left to the court’s discretion; it is quite
another to give the court discretion to change the sentence when the parties had agreed
that only one sentence was acceptable.
In my view, there is still value to the principle that, as with other types of
contracts, “a deal is a deal.” Before this principle becomes but a dim light in our rear-
view mirror, we should consider carefully the extent to which the Legislature has
required a plea deal to be undone. And while the Legislature could conceivably ordain a
reduction in a sentence contrary to the parties’ agreement, or delegate such authority or
discretion to the courts, it is good sense and sound policy to require the Legislature to
communicate that intent explicitly.
NEEDHAM, J.
(A152786)

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