People v. Allison

Filed 9/5/19
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, No. A153527
Plaintiff and Respondent,
(Contra Costa County Super. Ct.
v. Nos. 5-180579-7, 5-021253-0,
5-971130-0;
DENZIL FARRIAN ALLISON, Alameda County Super. Ct.
Defendant and Appellant. No. 135112)

Defendant Denzil Farrian Allison was convicted of a series of violent felonies in
three different cases, for which he received a 51-year aggregate sentence in 2005 under a
plea agreement. Upon the grant of a petition for a writ of habeas corpus in 2017, he was
resentenced to an aggregate sentence of 45 years and eight months. He argues we should
vacate two consecutive one-year sentences imposed as part of this resentencing because
they are unlawful under California Rules of Court, rule 4.452, remand for resentencing,
and also remand so the court can decide whether to strike his four firearm enhancements.
The People argue against Allison’s appellate claims on a variety of grounds,
including that the habeas order is void; that Allison needs, and has failed to obtain, a
certificate of probable cause to raise his appellate claims; and that remand regarding the
enhancement sentences would be futile.
We conclude the habeas order is not void, Allison may raise his rule 4.452 claim
without a certificate of probable cause and the two sentences he challenges must be
vacated as unlawful. We agree with the People that remand regarding the firearm
enhancement sentences would be futile and affirm those sentences.

1
 BACKGROUND
This appeal involves Allison’s 2017 resentencing in three different cases, which
we shall refer to as Cases A, B and C. Each case was the subject of a negotiated
disposition in which Allison pleaded no contest to certain charges. He was initially
sentenced in 2000 in Case A; sentenced later in 2000 in Case B to an aggregate term for
both Case A and Case B; and sentenced in 2005 in Case C to an aggregate term that
included sentences for Case C and resentences for Case A and Case B. In 2017, after the
superior court granted Allison’s petition for a writ of habeas corpus, Allison was
resentenced in all three cases.
A. The Original Sentences in Cases A, B and C
Specifically, in 2000, in Case A, case number 135112 in Alameda County
Superior Court, Allison pleaded no contest to voluntary manslaughter (Pen. Code, § 192,
subd. (a))1 and admitted the truth of two enhancement allegations—his personal use of a
firearm (§ 12022.5) and his sufferance of a prior prison term (§ 667.5, subd. (b)). The
court found him guilty of these charges and sentenced him to a total of 17 years in prison.
This consisted of 16 years for voluntary manslaughter and 1 year for the prior prison term
enhancement under section 667.5, subdivision (b).
Later in 2000, in Case B, case number 971130-0 in Contra Costa County Superior
Court, Allison pleaded no contest to three counts of assault with a firearm (§ 245,
subd. (a)(2)). The court found him guilty of these charges and sentenced him to an
aggregate prison term of 18 years for Case A and Case B. This consisted of the 17-year
term in Case A and a consecutive 1-year term in one of the three assault with a firearm
convictions in Case B. The court imposed concurrent one-year sentences for the other
two assault with a firearm convictions.
In 2005, in Case C, case number 5-021253-0 in Contra Costa County Superior
Court, Allison pleaded no contest to three counts of voluntary manslaughter (§ 192,
subd. (a)), admitted the truth of the personal use of a firearm enhancement allegations

1
All statutory references are to the Penal Code unless otherwise stated.
2
attached to each of these three counts (§ 12022.5, subd. (a)) and pleaded no contest to
two counts of attempted second degree murder (§§ 187, 664, subd. (a)). His pleas were
part of an agreement that, as his counsel stated at the time, included the parties’ “hope to
come up with a combined sentence of 51 years on the three cases.” His counsel, with the
approval of the prosecutor, then made a “suggestion” about how the court might reach
this aggregate sentence.
The trial court in Case C found Allison guilty of the charges he pled to in Case C
and sentenced him to an aggregate prison term of 51 years for Cases A, B and C. This
aggregate sentence included concurrent three-year terms for each of the three assault with
a firearm convictions in Case B and consecutive upper terms for two of the personal use
of a firearm enhancements in Case C. It also included a concurrent one-year term (rather
than the previous consecutive one-year term) for Case A’s prior prison term enhancement
under section 667.5, subdivision (b).
B. Allison’s 2017 Habeas Petition
Twelve years later, in 2017, Allison, appearing in propria persona, filed a petition
for writ of habeas corpus in Contra Costa County Superior Court. He alleged the
aggregate 51-year sentence imposed in 2005 was unauthorized by law in two respects.
First, the Case C court imposed an upper term rather than a middle term sentence for his
Case A voluntary manslaughter conviction without finding any aggravating
circumstances. Second, the court violated section 1170.1, subdivision (a) by imposing
(1) middle term three-year sentences rather than one-third of these middle terms, i.e., one
year, as subordinate sentences for the Case B assault with a firearm convictions and (2)
upper term 10-year sentences rather than one-third of each these terms (as subordinate
sentences), or three years and four months, for two of the Case C personal use of a
firearm enhancements. Allison requested the court resentence him to a lawful aggregate
prison term of 34 years.
Among the documents Allison submitted to the superior court in support of his
petition was a November 20, 2015 letter from the California Department of Corrections
and Rehabilitation (CDCR) to the Case C court stating that Allison’s abstract of judgment

3
could be in error or incomplete for multiple reasons. This included, regarding the Case C
10-year firearm enhancement sentences, that section 1170.1 required imposition of one-
third of the term imposed for enhancements attached to subordinate offenses.
In their return, the People acknowledged that under section 1170.1 any
consecutive subordinate term and related enhancement must consist of one-third of the
middle term for the offense or enhancement. They further acknowledged that an
unauthorized sentence may be corrected at any time, citing In re Birdwell (1996)
50 Cal.App.4th 926, 931. They contended that nonetheless, “because the sentence was
agreed upon in a plea bargain between the People and the petitioner, the People are
entitled to the benefit of the plea bargain, should the petitioner be resentenced,” but they
did not explain this contention or state what it entailed.
In his reply, Allison, now represented by counsel, focused on the ramifications of
section 1170.1 to the lawfulness of his 2005 sentencing. He contended the court should
impose a sentence of 26 years and 6 months.
The superior court ruled in the habeas proceeding (habeas order) that Allison’s 51-
year sentence was unauthorized under section 1170.1 and that the People could not
benefit from an illegal sentence. It remanded the matter to the Case C court for
resentencing “in accordance with . . . Section 1170.1” and with the authority to reconsider
its prior sentencing decisions in order to impose a term equaling Allison’s previous
sentence.
C. The 2017 Resentencing
The Case C court, with the same judge presiding as in 2005, held a resentencing
hearing in November 2017. The parties submitted briefs and argued at the hearing about
the lawful aggregate prison term that came closest to 51 years.
The People stated there was no lawful way to arrive at a 51-year aggregate
sentence and at first asserted a sentence of 39 years was the maximum lawful sentence
possible. This included consecutive one-year sentences for each of the Case B assault
with a firearm convictions (one third of the midterm under § 245, subd. (a)(2)).

4
 In a second brief filed soon after the first, the People argued the closest lawful
sentence to 51 years was actually 45 years and 8 months, including consecutive one-year
sentences for each of the three Case B assault with a firearm convictions. The People
argued the court was not required by any previous discretionary sentencing decisions to
resentence Allison to concurrent sentences for these three convictions. The People also
argued that in 2005 the court erred by imposing a concurrent one-year term for the
Case A prior prison term enhancement under section 667.5, subdivision (b). They
asserted the 2017 resentencing court should either impose a consecutive sentence or
strike this enhancement and included a consecutive one-year term for this enhancement in
their proposed sentence.
In his resentencing brief, Allison argued the court should resentence him to 31
years and 4 months. This included concurrent one-year sentences for the three Case B
assault with a firearm convictions. At the resentencing hearing, his counsel also
contended that California Rules of Court, rule 4.452 (rule 4.452) prohibited the court
from changing concurrent terms to consecutive terms for sentences imposed by a
previous court.2 The People argued Allison had waived this claim in 2005 and that the
2017 resentencing court could undo any of its previous discretionary sentencing decisions
in order to resentence Allison to a lawful term that was as close to the originally agreed-
to 51-year term as possible.
The 2017 resentencing court questioned whether rule 4.452 applied to a plea
agreement and concluded it could reconsider its previous sentencing choices to try to

2
Rule 4.452(a) states, “If a determinate sentence is imposed under section 1170.1
(a) consecutive to one or more determinate sentences imposed previously in the same
court or in other courts, the court in the current case must pronounce a single aggregate
term, as defined in section 1170.1 (a), stating the result of combining the previous and
current sentences.” In those situations, “[d]iscretionary decisions of the judges in the
previous cases may not be changed by the judge in the current case. Such decisions
include . . . making counts in prior cases concurrent with or consecutive to each
other . . . . However, if a previously designated principal term becomes a subordinate
term after the resentencing, the subordinate term will be limited to one-third the middle
base term as provided in section 1170.1 (a).” (Rule 4.452(a)(3).)

5
achieve the sentencing goal of the 2005 plea agreement. Changing sentences in all three
cases, it resentenced Allison to an aggregate term of 45 years and 8 months for Cases A,
B and C (2017 resentencing orders). This included consecutive one-year sentences for
the Case B assault with a firearm convictions and a consecutive one-year term for the
Case A prior prison term enhancement under section 667.5, subdivision (b).
Allison timely filed notices of appeal from the resentencing orders for Case B and
Case C.3 He did not file a notice of appeal from the court’s resentencing in Case A.
However, in an application to this court that we have taken under submission, he argues
we should construe the notices he filed as including an appeal from that case also. As we
will discuss in Discussion part III post, we have no need to decide this issue because,
assuming for the sake of argument that he has effectively appealed from Case A, his
appellate claim relating to that case nonetheless lacks merit.
Allison also filed a notice of appeal from the superior court’s 2017 order granting
most of his habeas corpus petition. The People urge us to dismiss that appeal because
Allison cannot appeal from any denial of his habeas petition. We agree and dismiss it.
(See Pen. Code, § 1506; In re Reed (1983) 33 Cal.3d 914, 918, fn. 2, overruled on other
grounds in In re Avila (2004) 33 Cal.4th 254, 260.) In any event, Allison only refers to
the court’s habeas order to support his argument that we should construe his appeals as
including one from Case A.

3
Allison had 60 calendar days to file these notices from the resentencing orders,
issued on November 22, 2017. (See Cal. Rules of Court, rule 8.308(a).) He filed 61 days
after issuance, on January 22, 2018. Still, as the People concede, he timely filed. His last
calendar day to file was January 21, 2018, which we note was a Sunday. (Evid. Code,
§§ 452, subd. (h), 459.) Therefore, his last filing day was the next business day, Monday,
January 22. (See Code Civ. Proc., § 12.)
6
 DISCUSSION
Allison argues we must (1) vacate the consecutive terms imposed in 2017 for two
of the three Case B assault with a firearm convictions as unlawful, (2) vacate the Case A
and Case C firearm enhancement sentences and remand to the trial court to determine
whether to exercise its discretion to strike these sentences under Senate Bill No. 620 and
(3) correct certain clerical errors in the court’s November 22, 2017 minute order.
The People argue we should not reach the merits of the first two issues (they do
not address the third) for two reasons. First, we should reverse the superior court’s 2017
order granting Allison’s habeas petition and then reimpose the 51-year aggregate
sentence because Allison’s sole remedy was to appeal in 2005 from that sentence after
obtaining a certificate of probable cause, rendering the habeas order void as unlawful;
and second, Allison has forfeited each of the two issues he raises by failing to obtain a
certificate of probable cause and is estopped from appealing for a better sentence than
that to which he stipulated in 2005.
As for the merits, the People agree the consecutive sentences for two of the Case B
assault with a firearm convictions were unlawful, but argue remand of the court’s firearm
enhancement sentences would be futile and, therefore, is unnecessary.
We conclude the habeas order is not void, including (1) because Allison was
entitled to petition the superior court for a writ of habeas corpus without first obtaining a
certificate of probable cause, (2) the superior court could change an unlawful sentence at
any time and (3) the court could reconsider the sentence upon notice from the CDCR of
its possible illegality.
We also conclude that Allison can on appeal challenge as unlawful the 2017
resentencing court’s imposition of consecutive sentences for two of the Case B assault
with a firearm convictions without first obtaining a certificate of probable cause. The
statements and conduct of the parties indicate that Allison’s challenge is one
contemplated and reserved by the parties’ plea agreement, since the parties agreed that
the court could impose an aggregate sentence as close to 51 years as lawfully possible
7
rather than a 51-year sentence whether lawful or not. We further conclude that these
consecutive sentences must be vacated as unlawful.
Given our rulings, we need not order corrections in the November 2017 minute
order. We also do not remand to the trial court to consider whether to strike the firearm
enhancements under Senate Bill No. 620 because it clearly is futile to do so.
We turn to each of these issues now.
I.
The Habeas Order Is Not Void.
Contrary to the People’s assertion, the 2017 habeas order is not void.
According to the People, the superior court should have denied Allison’s 2017
habeas petition because his “sole remedy” for any 2005 sentencing error was to obtain a
certificate of probable cause and appeal the 2005 judgment. They contend Allison
entered into a plea agreement that included a stipulated aggregate 51-year sentence for
Cases A, B and C, the Case C court imposed this sentence and Allison did not appeal
from it or seek a certificate of probable cause. Further, they argue, any challenge to a
negotiated sentence is a challenge to the validity of the plea agreement itself; the failure
to obtain a certificate of probable cause following a no contest plea generally forecloses
habeas relief; and the certificate of probable cause requirement is a matter of fundamental
jurisdiction. Therefore, “the superior court lacked jurisdiction to consider [Allison’s]
challenges to his stipulated sentence on habeas.” They urge us to conclude the habeas
order is void because “ ‘an act beyond the court’s jurisdiction in the fundamental sense is
null and void’ ab initio” (People v. Lara (2010) 48 Cal.4th 216, 225) and “ ‘vulnerable to
direct or collateral attack at any time.’ ” (People v. American Contractors Indemnity Co.
(2004) 33 Cal.4th 653, 660.)
Allison replies that, although generally a habeas petition should not be granted for
an issue that could have been but was not raised on appeal, a habeas challenge to an
unlawful sentence is an exception to this rule; a plea agreement cannot authorize a trial
court to exercise a power it does not have; and the People’s failure to appeal from the
2017 habeas order makes that decision final and res judicata.

8
 We conclude the superior court was authorized to reconsider unlawful aspects of
Allison’s sentence under these circumstances for multiple reasons. One reason, as we
will discuss further in subpart II.A post, concerns the specific terms of the parties’ plea
agreement.
Further, even if a certificate of probable cause would have been required for
Allison to raise his 1170.1 sentencing issues on appeal, he did not need to obtain a
certificate to seek habeas relief in the superior court for three reasons. First, the
certificate of probable cause provisions only require a certificate to appeal from an order
affecting the validity of the plea agreement. Section 1237.5 states, “No appeal shall be
taken by the defendant from a judgment of conviction upon a plea of guilty or nolo
contendere” except where the defendant has obtained a certificate of probable cause from
the trial court. (Italics added.) California Rules of Court, rule 8.304 states that “to
appeal from a superior court judgment after a plea of guilty or nolo contendere” a
defendant must obtain a certificate of probable cause subject to certain exceptions,
including that the appeal is on “[g]rounds that arose after entry of the plea and do not
affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(1), (4)(B); see People v.
Cuevas (2008) 44 Cal.4th 374, 379.) The certificate functions as a notice of appeal in
cases involving negotiated dispositions, which notices are of a “fundamental
jurisdictional nature.” (In re Chavez (2003) 30 Cal.4th 643, 652, 655.)
Moreover, the purposes of the certificate requirement relate to appellate litigation
only. The requirement is “intended to promote judicial economy by screening out wholly
frivolous appeals prior to the commitment of economic and legal resources to such
matters” and, as “applicable to such an appeal,” it is intended to promote finality of
judgment. (In re Chavez, supra, 30 Cal.4th at pp. 653–654, italics added.) These
purposes do not address a habeas petition to the superior court. Since Allison did not
raise the challenge to his sentencing by way of appeal or even seek habeas relief in this
court but instead filed a habeas petition in the superior court, the certificate requirement
does not apply.

9
 The People point out that our Supreme Court has stated that “[n]ormally habeas
corpus will not lie where the remedy of appeal exists.” (In re Brown (1973) 9 Cal.3d
679, 682; see also In re Chavez, supra, 30 Cal.4th at p. 651 [defendant challenging a plea
agreement on the ground of ineffective assistance of counsel cannot circumvent
section 1237.5 by seeking a writ of habeas corpus in appellate court].) However, the
cases the People cite involve habeas petitions to the appellate court rather than the
superior court. The cases do not address whether a petitioner can seek a writ from the
superior court without previously obtaining a certificate of probable cause in his case.
The People do not cite a case, and we are not aware of one, that has held that a failure to
obtain a certificate of probable cause prohibits a defendant from pursuing habeas relief in
the superior court. We see no reason why that would be the case.
Second, Allison contended in his habeas petition that the Case C court imposed an
unlawful sentence in 2005. It is well established that “[a] plea bargain that purports to
authorize the court to exercise a power it does not have is unlawful and may not be
enforced.” (In re Daniel M. Williams (2000) 83 Cal.App.4th 936, 944 (Williams).)
While there is disagreement between appellate courts as to whether such a sentence can
be corrected on appeal in the absence of a certificate of probable cause, there is no such
disagreement about the rule that an unlawful sentence can be corrected by the trial court
at any time. (See, e.g., People v. Corban (2006) 138 Cal.App.4th 1111, 1115–1117
[noting trial court can correct such a sentence at any time, discussing dispute among the
appellate courts about appellate relief and concluding no certificate was required because
appeal challenged only legality of sentence and not validity of plea].)
Third, the superior court was statutorily authorized to reconsider Allison’s
sentence upon the CDCR’s notification of its possible illegality. In Williams, supra,
83 Cal.App.4th 936, Williams appealed from the trial court’s striking of credits awarded
to him as a material part of his plea agreement after the court received a letter from the
Department of Corrections stating Williams was not entitled to them. (Id. at pp. 940–
941.) The appellate court explained that section 1170, subdivision (d) allowed the trial
court at any time, upon the recommendation of the Director of Corrections, to recall a

10
previous determinate sentence and resentence the defendant in the same manner as if he
or she had not previously been sentenced, provided the new sentence was no greater than
the initial sentence.4 (Williams, at p. 945.) The court rejected Williams’s argument that
it had no jurisdiction to resentence him based on section 1170. The court explained,
“[T]he trial court cannot approve a plea bargain that calls for an unlawful sentence. . . .
[W]e see no reason why the [Department of Corrections] cannot bring such error to the
attention of the trial court. The fact that the loss of good time/work time presentence
credit could result in longer incarceration of petitioner does not overcome the
fundamental requirement that the trial court can only approve a plea bargain that provides
lawful terms. Therefore, the trial court is authorized to strike the credit . . . .” (Williams,
at pp. 945–946.) The Williams court’s reasoning applies equally here.
For these reasons, we conclude the superior court had the legal authority to grant
Allison’s habeas petition. The People’s contention to the contrary lacks merit.
II.
Allison’s Assault with a Firearm Consecutive Sentences Must Be Vacated as Unlawful.
Allison next argues that the 2017 resentencing court had no legal authority to
impose consecutive sentences for two of his Case B assault with a firearm convictions
(counts eight and nine) because under rule 4.452 it was prohibited from changing the
Case B court’s decision in 2000 to impose concurrent sentences for these convictions.
The People agree but nonetheless argue we should dismiss Allison’s claim for lack of
fundamental jurisdiction because he challenges a sentence he stipulated to in the 2005
plea agreement without having first obtained a certificate of probable cause and because
he is estopped from seeking to better this stipulated sentence on appeal. Allison argues
the People’s arguments lack merit because he did not stipulate to his 2017 sentence.
We will address the merits of Allison’s claim because he does not challenge the
validity of the parties’ plea agreement. Whether or not the parties stipulated to a specific
term in 2005, they indicated by their statements and conduct that any sentence imposed

4
This provision remained the same in substance in 2017 (Stats. 2017, ch. 287,
§ 1) and remains the same in substance today. (§ 1170, subd. (d).)
11
had to be lawful. Regarding the merits of Allison’s claim, for reasons we shall discuss
we conclude the 2017 resentencing court acted unlawfully under rule 4.452 when it
imposed consecutive rather than concurrent sentences for two of the Case B assault with
a firearm convictions.
A. Allison Can Challenge the Court’s 2017 Imposition of Two Consecutive
Assault with a Firearm Sentences as Unlawful.
Allison can raise his rule 4.452 claim without first obtaining a certificate of
probable cause and is not estopped from raising this claim.
Generally, when a specific sentence is an “integral part of the plea agreement,” a
defendant may not challenge it on appeal without first obtaining a certificate of probable
cause. (People v. Panizzon (1996) 13 Cal.4th 68, 76–77, 78; People v. Hester (2000)
22 Cal.4th 290, 295 [plea deal for specified sentence constituted implicit waiver of
defendant’s right to contend sentence violated section 654].) This is because a specified
sentence in a plea agreement “normally implies a mutual understanding of the defendant
and the prosecutor that the specified [sentence] is one that the trial court may lawfully
impose.” (People v. Shelton (2006) 37 Cal.4th 759, 768 (Shelton).) Because “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,” they “are
estopped from complaining of sentences to which they agreed.” (Hester, at p. 295.)
On the other hand, a probable cause certificate is not required to challenge a trial
court’s exercise of a discretion that the parties reserved to it under their plea agreement.
(People v. Buttram (2003) 30 Cal.4th 773, 785–786.) “[W]hen the claim on appeal is
merely that the trial court abused the discretion the parties intended it to exercise, there is,
in substance, no attack on a sentence that was ‘part of [the] plea bargain.’ [Citation.]
Instead, the appellate challenge is one contemplated, and reserved, by the agreement
itself.” (Id. at pp. 785–786.)
Thus, whether Allison can pursue his rule 4.452 claim without having first
obtained a certificate of probable cause depends upon the nature of the sentence agreed to
by the parties in 2005. They do not cite, and we have not found, a case involving

12
circumstances analogous to those before us. Therefore, as our Supreme Court has
instructed, we turn to rules of contract interpretation. “A negotiated plea agreement is a
form of contract, and it is interpreted according to general contract principles. . . . ‘If
contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other
hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be
interpreted in the sense in which the promisor believed, at the time of making it, that the
promisee understood it.” (Id., Civ. Code, § 1649; [citation].)’ [Citation.] ‘The mutual
intention to which the courts give effect is determined by objective manifestations of the
parties’ intent, including the words used in the agreement, as well as extrinsic evidence of
such objective matters as the surrounding circumstances under which the parties
negotiated or entered into the contract; the object, nature and subject matter of the
contract; and the subsequent conduct of the parties. (Civ. Code, §§ 1635–1656; Code
Civ. Proc., §§ 1859–1861, 1864; [citations].)’ ” (Shelton, supra, 37 Cal.4th at p. 767.)
“ ‘The acts of the parties under the contract afford one of the most reliable means of
arriving at their intention; and, while not conclusive, the construction thus given to a
contract by the parties before any controversy has arisen as to its meaning will, when
reasonable, be adopted and enforced by the courts.’ ” (Crestview Cemetery Assn. v.
Dieden (1960) 54 Cal.2d 744, 753.)
The People’s argument that Allison cannot pursue his rule 4.452 claim is
predicated on the contention that the parties originally stipulated to a 51-year sentence
that they mutually understood the trial court could lawfully impose. However, the record
does not unambiguously indicate this was the case. Allison apparently executed a plea
form in 2005 regarding the parties’ agreement but it is not in the record. The record does
contain a plea form he had previously executed and withdrawn, which contains a
stipulated 33-year sentence for the Case C convictions. At the 2005 sentencing hearing,
counsel represented that Allison had replaced this plea form (with the one not contained
in the record) to include Allison’s resentencing in Cases A and B and that the form did
not change any of Allison’s pleas. Neither representation indicates whether this new
form contained a stipulated sentence of 51 years.

13
 Furthermore, at the 2005 (Case C) sentencing hearing, Allison’s counsel spoke in
terms suggesting that the parties did not stipulate to this specific 51-year aggregate term
with the mutual understanding that it was lawful. Counsel stated only that the parties’
“hope to come up with a combined sentence of 51 years on the three cases” and that he
had a “suggestion” about how the court might reach this aggregate sentence. (Italics
added.) These statements suggest the parties intended the Case C court would have the
discretion to impose specific sentences that came as close to 51 years as lawfully
possible.
Given this ambiguity, we look to the parties’ conduct to determine the nature of
their 2005 plea agreement. (Shelton, supra, 37 Cal.4th at p. 767; Crestview Cemetery
Assn. v. Dieden, supra, 54 Cal.2d at p. 753.) Their conduct in 2017 indicates they
intended the 2017 resentencing court would exercise its discretion to impose particular
sentences that were lawful. Allison, of course, argued in 2017 that there was no binding
stipulated sentence. But the People also repeatedly argued that the 2017 resentencing
court should impose the maximum lawful sentence, without limitation. Indeed, in their
2017 resentencing brief, the People went beyond the scope of the habeas order (which
addressed only unlawful sentences under section 1170.1) when they argued that in 2005
the Case C court also erred by imposing a concurrent one-year term for the Case A prior
prison term enhancement under section 667.5, subdivision (b), and that the 2017
resentencing court should either impose a consecutive sentence or strike this
enhancement. Furthermore, when Allison argued that the 2017 resentencing court could
not impose consecutive sentences for two of his assault with a firearm convictions under
rule 4.452, the People did not assert that Allison’s argument challenged the validity of the
parties’ plea agreement. Indeed, there is no record that the People asserted in the habeas
proceeding that Allison’s section 1170.1 contention challenged the validity of the parties’
plea agreement either; in their return they argued only that “because the sentence was
agreed upon in a plea bargain between the People and the petitioner, the People are
entitled to the benefit of the plea bargain, should the petitioner be resentenced,” and they
did not explain this contention or state what it entailed.

14
 We conclude Allison’s counsel’s statements at the 2005 hearing and the parties’
subsequent conduct in 2017 establish that the parties intended in 2005 to give the Case C
court the discretion to impose particular, lawful sentences of up to but no greater than 51
years. The parties essentially asked the court to impose an aggregate sentence that was as
close to 51 years as was lawfully possible and left it to the court’s discretion to determine
what it could lawfully do. These circumstances are similar to those confronted by our
Supreme Court in People v. Buttram, supra, 30 Cal.4th 773, in which the parties agreed
to a maximum sentence. The court concluded Buttram did not need a certificate of
probable cause to challenge the sentence imposed because, “[b]y agreeing only to a
maximum sentence, the parties leave unresolved between themselves the appropriate
sentence within the maximum. That issue is left to the normal sentencing discretion of
the trial court, to be exercised in a separate proceeding.” (Id. at pp. 785–786.) Allison’s
rule 4.452 challenge is on the ground of unlawfulness and, therefore, is one contemplated
and reserved by the parties’ 2005 plea agreement. He was not required to obtain a
certificate of probable cause to raise his rule 4.452 claim here. (See Buttram, at p. 786.)
B. The 2017 Resentencing Court’s Imposition of Consecutive Sentences for
Two Case B Assault with a Firearm Convictions was Unlawful.
Under rule 4.452(a)(1), a sentencing court in a subsequent case is required to
“pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of
combining the previous and current sentences.”5 Rule 4.452(a)(3) states, “Discretionary

5
Section 1170.1, subdivision (a) states in relevant part, “when any person is
convicted of two or more felonies, whether in the same proceeding or court or in different
proceedings or courts, and whether by judgment rendered by the same or by a different
court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170,
the aggregate term of imprisonment for all these convictions shall be the sum of the
principal term, the subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section 12022.1. The
principal term shall consist of the greatest term of imprisonment imposed by the court for
any of the crimes, including any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of one-third of the middle
term of imprisonment prescribed for each other felony conviction for which a consecutive
15
decisions of the judges in the previous cases may not be changed by the judge in the
current case. Such decisions include . . . making counts in prior cases concurrent with or
consecutive to each other . . . .”
In 2000, in Case B, Allison was convicted of assault with a firearm as charged in
counts seven, eight and nine. The Case B court imposed a consecutive one-year sentence
for count seven and concurrent one-year sentences for counts eight and nine. In 2005, the
Case C court, as a part of its imposition of an aggregate sentence of 51 years for cases A,
B and C, imposed concurrent three-year sentences for all three of these Case B
convictions, changing the consecutive sentence for count seven to a concurrent one (a
violation of rule 4.452(a)(3) in Allison’s favor that neither Allison nor the People
challenged). In 2017, the court resentenced Allison to three consecutive one-year
sentences for these Case B convictions. As Allison contends, under rule 4.452(a)(3) the
2017 resentencing court lacked the legal authority to change the concurrent sentences
imposed by the previous court—in this case, the 2000 Case B court—for counts eight and
nine to consecutive sentences, regardless of whether the 2017 resentencing court could
reconsider the sentencing decisions it had previously made in 2005. We must vacate
these two consecutive sentences and remand to the trial court for resentencing consistent
with this opinion.
III.
Allison’s Senate Bill No. 620 Claim Lacks Merit.
The 2017 resentencing included sentences for the Case A firearm enhancement
and three Case C firearm enhancements, all found to be true against Allison under
section 12022.5. The 2017 resentencing court imposed a 10-year sentence for the Case C
enhancement, which was attached to what the court designated as the principal term, and
one-third of the upper term of 10 years for the other three enhancements. Thus, 20 years
of the court’s 45 year and eight month aggregate sentence were for these enhancements.

term of imprisonment is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.”
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At the time, the court could not strike these enhancements under section 12022.5.
(Former § 12022.5, subd. (c), Stats. 2011, ch. 39, § 60.)
On January 1, 2018, Senate Bill No. 620 went into effect, giving trial courts the
discretion to strike or dismiss prior findings under firearm-related enhancements.
(Stats. 2017, ch. 682, § 1, subd. (c).) Specifically, section 12022.5, subd (c) states, “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.”
Defendant argues that section 12022.5, subdivision (c), as amended by Senate Bill
No. 620, applies retroactively to his case and that we should remand this matter to the
resentencing court to determine whether to strike the four firearm enhancements. The
People concede that the amended section 12022.5 subdivision (c) in general applies
retroactively. We agree. (See People v. Zamora (2019) 35 Cal.App.5th 200 [amended
§ 12022.5, subd. (c) applies retroactively to all cases not final when it took effect].)
However, the People oppose remand for several reasons. Along with their
argument that the habeas order is void as unlawful, which we have rejected ante, they
argue we should not remand because (1) Allison also was required to obtain a certificate
of probable cause in order to raise this claim on appeal; (2) he cannot raise a claim
regarding Case A because he failed to file a notice of appeal from the court’s 2017
resentencing order in that case; and (3) remand is unnecessary here because the record
clearly shows the 2017 resentencing court would not have exercised discretion, if the
court had it at the time, to strike these firearm enhancements.
We need not address all three arguments because, even assuming for the sake of
argument that Allison has properly appealed from the court’s Case A resentencing order
and does not need a certificate of probable cause to raise his Senate Bill No. 620 claim,
we agree with the People’s third argument. Remand is unnecessary if there is a clear
indication that the resentencing court will not exercise its discretion to strike the firearm
enhancements. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 423 [remand under

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Senate Bill No. 620 required if this standard is not met].) Typically, we remand to the
trial court to make its own determination, but we will not remand here because it is clear
that doing so would be a futile act under the unique circumstances of this case. Allison
was convicted of a series of serious and violent felonies in three different cases. In 2005,
he was sentenced to an aggregate sentence of 51 years in prison. Sentencing was
reopened in 2017 only because a part of that 51-year sentence was unlawful. At no time
did the 2017 resentencing court consider whether any aspect of Allison’s sentencing
should be reduced other than because of unlawfulness. To the contrary, during
resentencing, the parties and the court focused repeatedly and entirely on determining the
maximum lawful aggregate sentence the court could impose in order to come as close to
51 years as possible. In setting his sentence at 45 years and 8 months, the court also
imposed the maximum lawful sentences for all of the firearm enhancements. (§ 12022.5,
(a) [designating the range of terms as 3, 4 or 10 years].)
Allison argues that we should remand based on two cases that involved stipulated
sentences. Neither case supports his position. In the first, People v. Hurlic (2018)
25 Cal.App.5th 50, the court’s entire focus was on whether a certificate of probable cause
was needed to raise a Senate Bill No. 620 claim; the court did not publish the portion of
its opinion discussing its reasons for rejecting an argument that remand would be futile.
(Hurlic, at pp. 54–59.) People v. Baldivia (2018) 28 Cal.App.5th 1071 barely touched on
a relevant issue. Baldivia had been sentenced under a plea agreement in adult court for
crimes he committed at the age of 17. The appellate court considered whether he was
entitled to a juvenile fitness hearing under a new law, Proposition 57, to determine if his
case should be resolved in juvenile or adult court, and whether he needed a certificate of
probable cause to raise both this and a Senate Bill No. 620 issue on appeal. (Baldivia, at
pp. 1074–1079.) Although at the end of the last paragraph of its opinion the appellate
court ordered that, if Baldivia’s case was resolved in adult court, that court should
consider whether to strike the firearm enhancements, the court provided no analysis or
explanation for this part of its decision. (Id. at pp. 1079–1080.)

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 Under the circumstances, it is clear the 2017 resentencing court would not strike
Allison’s firearm enhancements if we remanded. Therefore, we affirm these
enhancement sentences.
IV.
The 2017 Resentencing Court Should Accurately State Its Sentences in Its Minute
Order and Amended Abstract of Judgment.
Allison correctly points out that the 2017 resentencing court made clerical errors
in its November 22, 2017 minute order memorializing its sentencing decisions.
In its minute order, the court first listed the Case C sentences under the correct
case number, but began each count with the letter “A,” thereby suggesting they were in
Case A, and compounded this error by including the prior prison term sentence in the list
when it should have been under the case number for Case A. Next, the court listed two of
the sentences for Case A under the case number for Case B and began the relevant count
with the letter “B,” thereby suggesting it was in Case B. Last, it listed the sentences for
Case B under the case number for Case A and began each count with the letter “C,”
thereby suggesting they were in Case C. The abstract of judgment filed on November 22,
2017, contains a similar plethora of errors. We will not order the court to correct these
orders in light of the resentencing we are requiring on remand. However, the court
should be careful to prepare an accurate minute order and amended abstract of judgment
upon remand to avoid any confusion going forward.
DISPOSITION
The sentences imposed by the 2017 resentencing court for Allison’s assault with a
firearm convictions in counts 8 and 9 of Case B are vacated and this matter is remanded
to the trial court to resentence Allison to concurrent convictions for these counts
consistent with this opinion. The judgments appealed from are otherwise affirmed. After
resentencing Allison, the court should prepare an amended abstract of judgment that
accurately reflects all of Allison’s sentences and provide a copy of this amended abstract
of judgment to the CDCR.

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 STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

People v. Allison (A153527)

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Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Garrett J. Grant

Counsel:

Patrick McKenna, under appointment by the Court of Appeal, for Defendant and
Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit, Deputy Attorney
General, Katie L. Stowe, Deputy Attorney General, for Plaintiff and Respondent.]

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