Filed 9/9/20 P. v. Sydow CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305328
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA092702)
v.
JAMES ADRIAN SYDOW,
Defendant and Appellant.
THE COURT:
Appellant and defendant James Adrian Sydow (defendant)
appeals from the denial of his motion to modify or stay his
sentence. His appointed counsel filed a brief pursuant to People
v. Wende (1979) 25 Cal.3d 436, raising no issues, and on June 29,
2020, we notified defendant of his counsel’s brief and gave him
leave to file his own brief or letter stating any grounds or
argument he might wish to have considered. Defendant has filed
his own brief raising several issues, along with a motion to strike
counsel’s Wende brief. We need not strike counsel’s Wende brief
to review the issues raised by defendant, as affording defendant
the right to file his own supplemental brief creates “a departure
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from the ‘general rule that a represented defendant has no right
personally to present supplemental arguments’ to the court
[citation].” (People v. Cole (2020) 52 Cal.App.5th 1023, 1039,
quoting People v. Kelly (2006) 40 Cal.4th 106, 120.) Further, as
this appeal is taken from the denial of a postjudgment motion, we
are required to review the record only for the purpose of
responding to the issues raised by defendant, and we do not
independently determine whether there are arguable issues that
were not raised. (See Cole, at p. 1039.) We affirm the order.
BACKGROUND
In 2011, defendant was charged as follows: shooting at an
inhabited dwelling in violation of Penal Code section 246 (count
1);1 carrying a concealed weapon in a vehicle, in violation of
former section 12025, subdivision (a)(1) (count 2); carrying a
switchblade knife, in violation of former section 653k, a
misdemeanor (count 3); and in counts 4, 5, and 6, assault with a
firearm in violation of section 245, subdivision (a). The
information alleged that a principal personally and intentionally
discharged a firearm, within the meaning of sections 12022.53,
subdivisions (c) and (e)(1), that a principal personally used a
firearm, within the meaning of section 12022.53, subdivisions (b)
and (e)(1), and pursuant to section 186.22, subdivisions (b)(1)(B)
and (b)(1)(C), that the shootings were committed for the benefit
of, at the direction of, and in association with a criminal street
gang, with the specific intent to promote, further and assist in
criminal conduct by gang members.
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
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On July 18, 2011, defendant entered an agreement to plead
no contest to an amended complaint in exchange for an 18-year
prison term. The information was amended to add additional
counts, to change the basis of the gang enhancement allegation in
count 4, to section 186.22, subdivision (b)(l)(C), and to add a
firearm allegation to count 4, pursuant to section 12022.5,
subdivision (a). Defendant then pled no contest to count 4 and
admitted the enhancement allegations. The trial court then
sentenced defendant as agreed to a term of 18 years in prison,
comprised of the upper term of four years, enhanced by four years
pursuant to section 12022.5, subdivision (a), and 10 years
pursuant to section 186.22, subdivision (b)(1)(C).
In February 2020, defendant filed a pro se motion to modify
his sentence, alleging that his sentence was unauthorized, and
that he was entitled to a hearing at which the court could
exercise its discretion under Senate Bill No. 620 to strike the
firearm enhancement. On February 7, 2020, the trial court
summarily denied the motion.
Defendant requested a certificate of probable cause, which
was denied, and then filed a notice of appeal.
DISCUSSION
Defendant contends the trial court erred in denying his
motion, which he can raise at any time because his sentence was
unauthorized and in excess of jurisdiction. Defendant relies on
People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), which held
that section 1170.1, subdivision (f) prohibits the use of a single
act of personally using a firearm in the commission of a felony to
support a sentence enhancement under former section 12022.5,
subdivision (a)(1), and to impose the elevated punishment under
section 186.22, subdivision (b)(1)(C), due to the use of a firearm
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while committing a felony to benefit a street gang. (Rodriguez, at
pp. 507-508; see People v. Le (2015) 61 Cal.4th 416, 419-420.)
The trial court denied defendant’s motion in that his
sentence was an “agreed upon disposition between the defense
and the People.” We construe the trial court’s reason for the
denial as a finding that defendant was estopped from challenging
the specific, agreed upon sentence, even if it was unauthorized at
the time the agreement was made. We agree with the trial court.
“The rule that defendants may challenge an unauthorized
sentence on appeal even if they failed to object below is itself
subject to an exception: 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.2 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.] . . . ‘When a defendant maintains that the trial
court’s sentence violates rules which would have required the
2 “A court lacks jurisdiction in a fundamental sense when it
has no authority at all over the subject matter or the parties, or
when it lacks any power to hear or determine the case.
[Citation.] If a court lacks such ‘“fundamental”’ jurisdiction, its
ruling is void. [Citation.] . . . [¶] . . . When a trial court has
fundamental jurisdiction but fails to act in the manner
prescribed, it is said to have acted ‘in excess of its jurisdiction.’
[Citation.] . . . A party may be precluded from seeking to set
aside such a ruling because of waiver, estoppel, or the passage of
time. [Citation.]” (People v. Ford (2015) 61 Cal.4th 282, 286.)
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imposition of a more lenient sentence, yet the defendant avoided
a potentially harsher sentence by entering into the plea bargain,
it may be implied that the defendant waived any rights under
such rules by choosing to accept the plea bargain.’ [Citation.]”
(People v. Hester (2000) 22 Cal.4th 290, 295, quoting People v.
Couch (1996) 48 Cal.App.4th 1053, 1056-1057.)
Defendant does not claim that the sentencing court lacked
fundamental jurisdiction, but that the sentence was
unauthorized by statute. Thus the trial court did not err in
finding that defendant was estopped from raising the issue he
chose. Moreover, when a defendant who has agreed to a
particular sentence as part of the negotiated plea bargain, a
challenge to his sentence is “in substance a challenge to the
validity of the plea”; and under such a circumstance, section
1237.5 requires a certificate of probable cause. (People v.
Panizzon (1996) 13 Cal.4th 68, 76.) We have held that an
exception to this general rule occurs when the defendant seeks to
benefit from the retroactive effect of a new law, even though he
has pled and agreed to a specific sentence. (People v.
Hurlic (2018) 25 Cal.App.5th 50, 55-56 (Hurlic).)
Defendant contends that the exception enunciated in
Hurlic means that the recently enacted section 1016.8 brings him
within that exception. (See Stats. 2019, ch. 586, § 1, eff. Jan. 1,
2020.) We disagree. Subdivision (a)(4) of section 1016.8 provides:
“A plea bargain that requires a defendant to generally waive
unknown future benefits of legislative enactments, initiatives,
appellate decisions, or other changes in the law that may occur
after the date of the plea is not knowing and intelligent.”
Subdivision (b) provides: “A provision of a plea bargain that
requires a defendant to generally waive future benefits of
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legislative enactments, initiatives, appellate decisions, or other
changes in the law that may retroactively apply after the
date of the plea is void as against public policy.” We found no
such waiver or provision in the terms of defendant’s plea
agreement, and nothing in section 1016.8 addresses section
1237.5 or the requirement of a certificate of probable cause.
Moreover, section 1170.1 was enacted, and Rodriguez was
decided before defendant entered his plea.
The only statutory benefit claimed by defendant here that
was enacted after defendant’s plea is that provided by Senate Bill
No. 620, which amended sections 12022.5, 12022.53, and 1385, to
give sentencing courts discretion to strike or dismiss firearm
enhancements. However, those amendments apply retroactively
only to cases not yet final on appeal on its effective date of
January 1, 2018. (People v. Harris (2018) 22 Cal.App.5th 657,
659; see Hurlic, supra, 25 Cal.App.5th at p. 56.) As defendant’s
judgment was final almost nine years ago, he does not qualify for
any benefit under Senate Bill No. 620, regardless of any
requirement for a certificate of probable cause.
DISPOSITION
The order of February 7, 2020, denying defendant’s motion
for modification or stay of sentence, is affirmed.
____________________________________________________________
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
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