Filed 11/19/20 P. v. Espana CA6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, H046062
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1361295)
v.
RICARDO ANGEL ESPANA,
Defendant and Appellant.
This case is before us for the second time after the California Supreme Court
granted review, deferred briefing, and transferred the matter back to this court with
directions to vacate our prior decision and reconsider the cause in light of People v.
Stamps (2020) 9 Cal.5th 685 (Stamps). Defendant Ricardo Angel Espana pleaded no
contest to attempted murder (Pen. Code, §§ 664, subd. (a), 187),1 shooting at an inhabited
dwelling (§ 246), and assault with a firearm (§ 245, subd. (a)(2)). Defendant admitted
two firearm enhancements (§ 12022.53, subds. (a), (b)) and a prior serious felony
conviction enhancement (§ 667, subd. (a)). On appeal, defendant argued that we should
reverse the judgment and remand the matter back to the trial court so that it may exercise
its discretion to dismiss his firearm or prior serious felony conviction enhancements in
light of Senate Bill Nos. 620 and 1393. In our earlier opinion, we agreed with defendant
and reversed and remanded the judgment with directions.
1 Unspecified statutory references are to the Penal Code.
We vacate our previous decision and, having reconsidered it, we again reverse and
remand the matter back to the trial court.
BACKGROUND
1. The Crimes2
On June 13, 2013, San Jose Police Department officers responded to a drive-by
shooting. The victim, who suffered a broken nose, chipped tooth, and a pellet through his
right eye, told officers that he was shot by several suspects driving a black vehicle. Prior
to the shooting, the victim heard the suspects shout “Norte.”
That same evening, officers responded to another shooting. The victim told
officers that he was seated in his car when suspects in a dark-colored car pulled up next
to him and shot twice into his car. A car matching the description of the suspects’ car
was found on a nearby freeway, and defendant was identified as the driver. Defendant
and another man, his codefendant, were arrested following a high-speed chase. Both
defendant and his codefendant were identified as active members of the Norteño criminal
street gang.
2. The Plea Agreement
On September 14, 2016, defendant completed an advisement of rights, waiver, and
plea form. Defendant agreed to plead no contest to attempted murder (§§ 664, subd. (a),
187), shooting at an inhabited dwelling (§ 246), and assault with a firearm (§ 245,
subd. (a)(2)). In connection with the count of attempted murder, defendant admitted a
firearm enhancement (§ 12022.53, subd. (b)) and a gang enhancement (§ 186.22,
subd. (b)(1)(C)). In connection with the counts of shooting into an inhabited dwelling
and assault with a firearm, defendant admitted a firearm enhancement (§ 12022.5,
subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)). Defendant also admitted
2Since defendant pleaded no contest, we derive our summary of the offense from
the probation officer’s report, which was based on a report prepared by the San Jose
Police Department.
2
he had a prior strike and a prior serious felony conviction. In exchange, defendant agreed
to a sentence of 34 years eight months if the trial court granted his Romero3 motion, or
35 years if the trial court did not grant his Romero motion. Defendant entered his plea
that same day.
3. Sentencing
On February 2, 2018, the trial court granted defendant’s Romero motion. On
March 23, 2018, the trial court sentenced defendant to an aggregate term of 34 years
eight months in prison. The sentence was composed of: four years for assault with a
firearm (§ 245, subd. (a)(2)), 10 years for the gang enhancement (§ 186.22,
subd. (b)(1)(C)), and 10 years for the firearm enhancement (§ 12022.5, subd. (a)); two
years four months for attempted murder (§§ 664, subd. (a), 187) and three years four
months for the gang enhancement (§ 186.22, subd. (b)(1)(C)); seven years concurrent for
shooting at an inhabited dwelling (§ 246) and five years concurrent for the gang
enhancement (§ 186.22, subd. (b)(1)(B)). The trial court also imposed a five-year
sentence for defendant’s prior serious felony conviction (§ 667, subd. (a)).
On April 16, 2018, the trial court denied defendant’s Marsden4 motion and his
motion to withdraw his plea.
On May 16, 2018, defendant filed a notice of appeal and request for a certificate of
probable cause claiming that “his plea was not free and voluntary.” The trial court denied
defendant’s request for a certificate of probable cause.
DISCUSSION
On appeal, defendant argues that we should reverse the judgment and remand the
matter back to the trial court so that it may exercise its discretion to dismiss his firearm or
prior serious felony conviction enhancements in light of the Legislature’s recent
enactment of Senate Bill Nos. 620 and 1393.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4 People v. Marsden (1970) 2 Cal.3d 118.
3
1. Senate Bill Nos. 620 and 1393
Senate Bill No. 620, effective January 1, 2018, permits a trial court to exercise its
discretion and strike firearm enhancements imposed under sections 12022.5 and
12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.) The
statues provide that “[t]he 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),
12022.53, subd. (h).)
Senate Bill No. 1393, effective January 1, 2019, amended section 1385 to give
trial courts the discretion to dismiss prior serious felony conviction enhancements
imposed under section 667, subdivision (a). (Stats. 2018, ch. 1013, §§ 1, 2.)
2. People v. Stamps
The defendant in Stamps entered into a plea agreement for a specified term that
included a prior serious felony enhancement under section 667, subdivision (a). (Stamps,
supra, 9 Cal.5th at p. 692.) The defendant was sentenced in January 2018, filed a notice
of appeal, and requested a certificate of probable cause, which the trial court denied. (Id.
at p. 693.) On September 30, 2018, while the defendant’s appeal was still pending, the
governor approved Senate Bill No. 1393, allowing a trial court to dismiss a serious felony
enhancement under section 1385. (Stamps, supra, at p. 693.) On appeal, the defendant
argued that in light of Senate Bill No. 1393, his case should be remanded to the trial court
so that it could exercise its newfound discretion under section 1385 to strike his prior
serious felony enhancement. (Stamps, supra, at p. 692.) The People argued that the
defendant’s claim was not cognizable on appeal because he failed to obtain a certificate
of probable cause. (Ibid.) The appellate court in Stamps remanded the matter back to the
trial court after it concluded that the defendant did not need a certificate of probable to
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raise his arguments and that Senate Bill No. 1393 retroactively applied to him. (Stamps,
supra, at p. 692.)
The California Supreme Court agreed with the appellate court’s conclusions that a
certificate of probable cause was not required because the defendant was not urging that
his plea was invalid when made. (Stamps, supra, 9 Cal.5th at pp. 694-698.) The
“ ‘general rule in California is that plea agreements are deemed to incorporate the reserve
power of the state to amend the law or enact additional laws for the public good and in
pursuance of public policy.’ ” (Id. at p. 695, quoting Doe v. Harris (2013) 57 Cal.4th 64,
71.) The Stamps defendant was seeking relief because of an ameliorative change in the
law, which he believed was incorporated into his plea agreement. (Stamps, supra, at
p. 697.) Moreover, the Supreme Court agreed with the appellate court’s conclusion that
Senate Bill No. 1393 was retroactive to judgments that were not yet final as of the date
that the law became effective. (Stamps, supra, at p. 699; see In re Estrada (1965) 63
Cal.2d 740.)
The California Supreme Court, however, modified the appellate court’s remand
order. The Supreme Court noted that the Stamps defendant had entered into a negotiated
plea agreement, and “long-standing law limits the court’s unilateral authority to strike an
enhancement yet maintain other provisions of the plea bargain.” (Stamps, supra, 9
Cal.5th at p. 701; § 1192.5.) The Supreme Court concluded that “[i]n order to justify a
remand for the court to consider striking [the defendant’s] serious felony enhancement
while maintaining the remainder of his bargain, defendant must establish not only that
Senate Bill [No.] 1393 applies retroactively, but that, in enacting that provision, the
Legislature intended to overturn long-standing law that a court cannot unilaterally modify
an agreed-upon term by striking portions of it under section 1385.” (Stamps, supra, at
p. 701.) The Supreme Court did not believe that the Legislature intended such a result.
(Ibid.)
5
In coming to this conclusion, the California Supreme Court distinguished Harris v.
Superior Court (2016) 1 Cal.5th 984. In Harris, the defendant pleaded to felony grand
theft and admitted a prior robbery conviction in exchange for a negotiated prison term.
(Id. at pp. 987-988.) After the passage of Proposition 47, which reduced certain felonies,
including grand theft, to misdemeanors, the defendant petitioned to have his theft
conviction resentenced as a misdemeanor. (Id. at p. 988.) The People argued that the
reduction violated the plea agreement and sought to withdraw from the bargain. The
Supreme Court in Harris rejected the People’s position, arguing that a plea agreement did
not insulate the parties from changes in the law that the Legislature intended to apply to a
plea agreement and that resentencing under Proposition 47 would prove meaningless if
the People could respond to a successful petition by withdrawing from the agreement and
reinstating charges. (Harris, supra, at pp. 991-992.)
In Harris, the language of Proposition 47 “evinced an intent that these offenses be
treated as misdemeanors no matter how or when a defendant suffered the conviction.”
(Stamps, supra, 9 Cal.5th at p. 704.) In contrast, Stamps concluded that “[n]othing in the
language and legislative history of Senate Bill [No.] 1393 suggests an intent to modify
section 1192.5’s mandate that ‘the court may not proceed as to the plea other than as
specified in the plea’ without the consent of the parties.” (Ibid.) “Unlike in Harris, the
remedy defendant seeks, to allow the court to strike the serious felony enhancement but
otherwise retain the plea bargain, would frustrate the Legislature’s intent to have
section 1385 apply uniformly, regardless of the type of enhancement at issue, by granting
the court a power it would otherwise lack for any other enhancement.” (Ibid.)
The Stamps court, however, determined that a limited remand was still
appropriate. Stamps concluded that the defendant “should be given the opportunity to
seek the court’s exercise of its section 1385 discretion. If the court on remand declines to
exercise its discretion under section 1385, that ends the matter and [the] defendant’s
sentence stands. [¶] However, if the court is inclined to exercise its discretion . . . such a
6
determination would have consequences to the plea agreement. . . . If the court indicates
an inclination to exercise its discretion under section 1385, the prosecution may, of
course, agree to modify the bargain to reflect the downward departure in the sentence
such exercise would entail. Barring such a modification agreement, ‘the prosecutor is
entitled to the same remedy as the defendant—withdrawal of assent to the plea
agreement . . . .’ [Citation.] [¶] Further, the court may withdraw its prior approval of the
plea agreement.” (Stamps, supra, 9 Cal.5th at pp. 707-708.) In light of these potential
consequences, Stamps emphasized that it was the defendant’s choice whether to seek
relief under Senate Bill No. 1393. (Id. at p. 708.)
3. Analysis
a. Retroactivity
Defendant argues that he should be entitled to the ameliorative changes brought by
Senate Bill Nos. 620 and 1393. We agree that both Senate Bill Nos. 620 and 1393 are
retroactive to all cases not yet final as of the date they became effective. (People v.
Woods (2018) 19 Cal.App.5th 1080, 1089-1091 [Senate Bill No. 620 retroactive to
nonfinal judgments]; Stamps, supra, 9 Cal.5th at p. 699 [Senate Bill No. 1393 retroactive
to nonfinal judgments]; see In re Estrada, supra, 63 Cal.2d 740.)
b. Necessity of a Certificate of Probable Cause
Next, defendant argues that he does not need a certificate of probable cause to
raise his appellate arguments, and we agree. In Stamps, the California Supreme Court
determined that a defendant did not need a certificate of probable cause to argue that
Senate Bill No. 1393 retroactively applied because the defendant was seeking relief from
an ameliorative change in the law, which was incorporated into the plea agreement.
(Stamps, supra, 9 Cal.5th at pp. 694-698.) Although Stamps solely addresses arguments
pertaining to the retroactivity of Senate Bill No. 1393, we find that the same logic applies
to arguments pertaining to Senate Bill No. 620. Like Senate Bill No. 1393, which gives
trial courts the discretion to strike prior serious felony enhancements, Senate Bill No. 620
7
is an ameliorative change in the law that gives trial courts the discretion to strike firearm
enhancements.
c. Appropriate Remedy
Here, defendant entered into a negotiated plea agreement which included prison
terms for his firearm enhancements and his prior serious felony conviction. As stated in
Stamps, it is not appropriate for us to merely remand the matter with directions to permit
the trial court to exercise its discretion to strike the firearm enhancements and prior
serious felony conviction enhancement while maintaining the rest of the plea agreement.
(Stamps, supra, 9 Cal.5th at pp. 701-709.) There is no indication that the Legislature
intended Senate Bill No. 1393 “to overturn long-standing law that a court cannot
unilaterally modify an agreed-upon term by striking portions of it under section 1385.”
(Stamps, supra, at p. 701.) Likewise, we have found no indication that the Legislature
intended Senate Bill No. 620 to overturn this long-standing principle.
Thus, a limited remand, as described in Stamps, is the appropriate remedy.
(Stamps, supra, 9 Cal.5th at p. 701.) Defendant should be permitted to have the
opportunity to seek the trial court’s exercise of its new discretion. (Id. at p. 707.) If the
trial court declines to exercise its discretion, defendant’s sentence shall stand. (Ibid.) If
the trial court is inclined to exercise its discretion, the prosecution can agree to modify
the bargain, or the prosecution may withdraw from the plea. (Ibid.) The trial court may
also withdraw its prior approval of the plea agreement. (Id. at p. 708.) We emphasize
that it is defendant’s choice whether he wishes to seek relief under either Senate Bill
Nos. 620 or 1393.
DISPOSITION
The judgment is reversed and remanded to allow defendant to seek relief under
Senate Bill Nos. 620 and 1393 and for further proceedings consistent with People v.
Stamps (2020) 9 Cal.5th 685.
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Premo, J.
WE CONCUR:
Greenwood, P.J.
Elia, J.
People v. Espana
H046062