Filed 12/18/20 P. v. Antuna 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H042678
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1084548)
v.
JOSEPH ANTUNA,
Defendant and Appellant.
Pursuant to a plea agreement, defendant Joseph Antuna pleaded guilty to
murder (count 1) (Pen. Code, §§ 187, 189)1 and two counts of attempted murder
(counts 2 & 3) (§§ 187, 664, subd. (a)); he admitted allegations that those attempted
murders were willful, deliberate, and premeditated; he admitted gang and firearm
allegations; and he waived his appellate rights. In exchange, defendant received a total
term of 50 years to life for the murder and the associated firearm enhancement
(§ 12022.53, subd. (d)) and concurrent sentences on the remaining two counts.
Defendant was 21 years old when he committed those offenses.
The passage of Senate Bill No. 620 (20l7-2018) (Senate Bill 620) amended
section 12022.53, subdivision (h) (12022.53(h)), effective January 1, 2018. (Stats. 2017,
ch. 682, § 2; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) Prior to
this amendment, section 12022.53(h) and the predecessor statute mandated imposition of
1
All further statutory references are to the Penal Code unless otherwise specified.
the section’s firearm enhancements.2 This was the law when defendant committed his
crimes and when he was sentenced. Since its amendment in 2017, section 12022.53(h)
has provided: “The court may, in the interest of justice pursuant to [s]ection 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.”
On appeal defendant asserts that the judgment should be reversed to permit the
trial court to retroactively exercise its discretion to strike the firearm enhancements as
now permitted by section 12022.53(h). Defendant maintains that this issue is not barred
by his general waiver of his right to appeal or by the lack of a certificate of probable
cause.3 Defendant further asserts that since the youth offender parole hearing statutes
now apply to him, the case should be remanded for a “Franklin hearing” (see People v.
Franklin (2016) 63 Cal.4th 261 (Franklin)) to preserve mitigating evidence tied to his
youth. He contends that failure to order such a remand would result in a violation of his
rights to due process and equal protection under the law.
After we filed our original opinion, the California Supreme Court granted review
and later issued an order transferring the matter to this court with directions (S257744).
We vacated the original opinion pursuant to the transfer order. We now reconsider the
cause in light of People v. Stamps (2020) 9 Cal.5th 685 (Stamps), as directed.
We again find that neither defendant’s general waiver of his right to appeal nor the
lack of a certificate of probable cause bars this court from proceeding with this appeal
2
Until the 2017 amendment took effect, section 12022.53(h) provided:
“Notwithstanding [s]ection 1385 or any other provision of law, the court shall not strike
an allegation under this section or a finding bringing a person within the provisions of
this section.” (Stats. 2010, ch. 711, § 5; see Stats. 2006, ch. 901, § 11.1 [former
§ 12022.53(h)].)
3
Defendant’s motion for relief from default and for leave to file an amended
notice of appeal that includes a statement of reasonable grounds and a request for a
certificate of probable cause is denied. (See Cal. Rules of Court, rules 8.60(d), 8.304(b),
8.308(a); People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099.)
2
and reaching the issues that he now raises. We again determine that defendant’s assertion
that section 12022.53(h), as amended, applies retroactively to him does not attack the
validity of his guilty plea. Our determination is consistent with the reasoning of Stamps
because defendant does not seek to set aside or withdraw his plea or challenge it as
defective or invalid when entered. (See Stamps, supra, 9 Cal.5th at pp. 696, 698.) We
conclude, as we did before, that amended section 12022.53(h) applies retroactively under
the reasoning of In re Estrada (1965) 63 Cal.2d 740 (Estrada). We also again determine
that defendant should have the opportunity for a Franklin hearing upon remand.
In Stamps, however, the Supreme Court clarified the remedy that is available to a
defendant who agreed to a specific term of imprisonment pursuant to a plea agreement
but later claims on appeal that he is entitled to the retroactive benefit of an ameliorative
change in the applicable sentencing law. Under the reasoning of Stamps, such a
defendant must establish both that the amended law applies retroactively under Estrada
(Stamps, supra, 9 Cal.5th at p. 701) and that in enacting the law, the Legislature intended
the law to retroactively apply to modify a negotiated sentence, despite the usual legal
constraints on altering agreed-upon terms. (Id. at pp. 701, 704; see § 1192.5.) The court
outlined the potential consequences to a plea agreement if no such legislative intent is
established. (Stamps, supra, at pp. 707-708.)
Section 1192.5 states in part: “Where the plea is accepted by the prosecuting
attorney in open court and is approved by the court, . . . the court may not proceed as to
the plea other than as specified in the plea.” In this case, defendant has not shown that
the legislative intent in enacting Senate Bill 620 was to modify the mandate of
section 1192.5. (See Stamps, supra, 9 Cal.5th at p. 704.) With a full understanding of
the potential consequences to his plea agreement, as fleshed out in Stamps, defendant
should now “be allowed to make an informed decision whether to seek relief on remand”
(id. at p. 708).
3
We will reverse the judgment and remand the matter to allow defendant the
opportunity to request relief under section 12022.53(h) and to have a Franklin hearing.
I
Procedural History
Defendant’s motion to represent himself pursuant to Faretta v. California (1975)
422 U.S. 806 (Faretta) was granted on June 20, 2012.
A first amended information (hereafter information) charged defendant with three
counts4 committed on or about June 25, 2010: murder of C.L. with malice aforethought
(§ 187) (count 1) and the attempted murders of I.C. and C.C. (§§ 187, 664, subd. (a))
(counts 2 & 3). The information alleged that the attempted murders charged in counts 2
and 3 were committed willfully, deliberately, and with premeditation. It alleged that all
of the charged offenses were committed for the benefit of a criminal street gang within
the meaning of section 186.22, subdivision (b)(1)(C) (10-year enhancement) and that the
attempted murders charged in counts 2 and 3 were committed for the benefit of a criminal
street gang within the meaning of section 186.22, subdivision (b)(5) (15-year minimum
parole eligibility term). As to counts 1 and 3, the information alleged that defendant
personally and intentionally discharged a firearm and proximately caused great bodily
injury or death within the meaning of 12022.53, subdivision (d) (consecutive 25-years-to-
life enhancement). As to count 2, the information alleged that defendant was a principal
and a principal had intentionally and personally discharged a firearm and proximately
caused great bodily injury within the meaning of section 12022.53, subdivisions (d) and
(e)(1) (consecutive 25-years-to-life enhancement).
At a change-of-plea hearing on May 6, 2015, the prosecutor announced that
defendant would be pleading guilty to all charges against him in the information and
admitting all associated allegations as part of a plea agreement. The prosecutor informed
the court that the parties had agreed that the total sentence on count 1 would be 50 years
4
A codefendant was charged with six counts.
4
to life, which included a 25-years-to-life term for first degree murder and a 25-years-to-
life term for the firearm enhancement, and that the sentences on counts 2 and 3 would run
concurrently.
Defendant pleaded guilty to murder (count 1).5 As to this crime, he also admitted
the criminal street gang enhancement allegation (§ 186.22, subd. (b)(1)(C) [10-year
enhancement]) and the firearm enhancement allegation pursuant to section 12022.53,
subdivision (d). He also pleaded guilty to two counts of attempted murder (counts 2, 3)
(§§ 187, 664, subd. (a)), and as to those counts, he admitted that the offenses were
willful, deliberate, and premeditated (see §§ 189, 664, subd. (a)) and admitted the
criminal street gang allegations pursuant to section 186.22, subdivision (b)(5)6 and the
firearm enhancement allegations.
At the time of sentencing on June 5, 2015, the trial court imposed a total sentence
of 50 years to life. The total term on count 1 included a term of 25 years to life for
murder7 (§ 190, subd. (a)) plus a consecutive 25-years-to-life firearm enhancement
(§ 12022.53, subd. (d)). On both counts 2 and 3, the court imposed concurrent terms of
5
The trial court asked defendant, “Then what is your plea to count one, that on or
about June 25th of 2010 in the County of Santa Clara, State of California, you violated
Penal Code Section 187, murder, in that you did unlawfully and with malice aforethought
kill [C.L.], a human being? Defendant answered, “Guilty.”
6
Subdivision (b)(5) of section 186.22 “serves as an alternate penalty provision”
(People v. Fuentes (2016) 1 Cal.5th 218, 224), “imposes a minimum prison confinement
of 15 years before a defendant is eligible for parole, [and] applies when the underlying
felony by its own terms provides for a life sentence.” (Ibid.)
7
At the sentencing hearing, defendant protested that the count 1 offense was not
first degree murder. The trial court indicated that proceedings were beyond that point.
On appeal, defendant does not argue that the abstract of judgment incorrectly reflects the
count 1 crime to which he pleaded. We note that in People v. Hester (2000) 22 Cal.4th
290, the Supreme Court stated: “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. 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.]” (Id. at
p. 295.)
5
40 years to life, which each included a 15-years-to-life term for attempted murder
(see ante, fn. 6) plus a consecutive 25-years-to-life firearm enhancement. The court said
that as to each of the three counts, it was striking the 10-year enhancement (§ 186.22,
subd. (b)(1)(C)) pursuant to section 186.22, subdivision (g).8
Defendant filed a notice of appeal and requested a certificate of probable cause.
The request merely stated: “For reasons that were stated in court, defendant’s plea was
involuntary and he received ineffective assistance of counsel.”9 The request was denied.
II
Discussion
A. Stamps
The defendant in Stamps had entered into a plea agreement providing for a
specified term that included a prior serious felony enhancement (§ 667, subd. (a)).
(Stamps, supra, 9 Cal.5th at p. 692.) On appeal, he claimed that a change in the law that
permitted a trial court to strike such an enhancement in furtherance of justice (§ 1385,
subd. (a)) applied retroactively to him. (Stamps, supra, at p. 692.) He asserted that in
light of the passage of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393),
which amended sections 667 and 1385 (Stats. 2018, ch. 1013, §§ 1, 2), “his case should
be remanded to the trial court to exercise its discretion whether to strike the serious
felony enhancement.” (Stamps, supra, at p. 693.)
The California Supreme Court held in Stamps that the “defendant was not required
to obtain a certificate of probable cause (Pen. Code, § 1237.5) to claim on appeal that the
new law applied to him retroactively . . . .” (Stamps, supra, 9 Cal.5th at p. 692.) The
court first recognized the basic principle that a defendant’s “claim that seeks to avoid a
8
Defendant admitted a gang enhancement within the meaning of section 186.22,
subdivision (b)(1)(C), as to only count 1.
9
“[A] defendant who elects to represent himself cannot thereafter complain that
the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ”
(Faretta, supra, 422 U.S. at p. 834, fn. 46; see People v. Espinoza (2016) 1 Cal.5th 61,
75.)
6
term of [a plea] agreement, as made, is an attack on the plea itself.” (Id. at p. 695.)
However, the court observed that defendant Stamps was relying on the separate
“principle that ‘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.’ (Doe v. Harris (2013) 57 Cal.4th 64,
71 [(Doe)].)” (Ibid.) It quoted from the Doe decision: “ ‘That the parties enter into a
plea agreement thus does not have the effect of insulating them from changes in the law
that the Legislature has intended to apply to them’ ([Doe,] at p. 66), and ‘[i]t follows . . .
that requiring the parties’ compliance with changes in the law made retroactive to them
does not violate the terms of the plea agreement’ (id. at p. 73). (See Harris v. Superior
Court (2016) 1 Cal.5th 984, 990-991 . . . .)” (Id. at pp. 695-696.)
The Supreme Court determined in Stamps that no certificate was required because
the defendant in that case was “seeking retroactive application of a subsequently enacted
ameliorative provision, which he contend[ed] ha[d] been incorporated into his plea
agreement.” (Stamps, supra, 9 Cal.5th at p. 696.) Thus, the defendant was “seek[ing]
relief because the law subsequently changed to his potential benefit.” (Id. at p. 698.)
He was not “seek[ing] to put aside or withdraw his plea” (ibid.) and he was not
challenging his plea as defective or invalid when made. (Id. at pp. 696, 698.)
The Supreme Court then concluded in Stamps that under Estrada’s general
presumption that ameliorative criminal laws apply retroactively, the change made by
Senate Bill 1393 applied retroactively to the defendant. (Stamps, supra, 9 Cal.5th at
pp. 698-699.) The court recited the Estrada rule: “[I]f no contrary indication exists,
‘[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously
expressly determined that its former penalty was too severe and that a lighter punishment
is proper as punishment for the commission of the prohibited act. It is an inevitable
inference that the Legislature must have intended that the new statute imposing the new
lighter penalty now deemed to be sufficient should apply to every case to which it
7
constitutionally could apply. The amendatory act imposing the lighter punishment can be
applied constitutionally to acts committed before its passage provided the judgment
convicting the defendant of the act is not final.’ [Citation.]” (Stamps, supra, 9 Cal.5th at
p. 699.) The court further stated: “ ‘The Estrada rule rests on the presumption that, in
the absence of a savings clause providing only prospective relief or other clear intention
concerning any retroactive effect, “a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that are not.” ’ [Citation.]”
(Ibid.)
The Supreme Court concluded in Stamps that Senate Bill 1393 applied
retroactively to the defendant because (1) the bill “constitute[d] an ameliorative change
within the meaning of Estrada” (Stamps, supra, 9 Cal.5th at p. 699); (2) there was no
indication of a contrary legislative intent to make the bill apply only prospectively (ibid.);
and (3) the defendant’s “judgment [was] not yet final.” (Ibid.) However, the court stated
that it was “not enough for [the] defendant to establish that the amended section 1385
applie[d] to him retroactively under Estrada in order to receive the remedy he seeks.”
(Id. at p. 701.)
The Supreme Court explained: “Even when applicable, section 1385 ordinarily
does not authorize a trial court to exercise its discretion to strike in contravention of a
plea bargain for a specified term. Section 1192.5 allows a plea to ‘specify the
punishment’ and ‘the exercise by the court thereafter of other powers legally available to
it,’ and ‘[w]here the plea is accepted by the prosecuting attorney in open court and is
approved by the court, the defendant, except as otherwise provided in this section, cannot
be sentenced on the plea to a punishment more severe than that specified in the plea and
the court may not proceed as to the plea other than as specified in the plea.’ (Italics
added.)” (Stamps, supra, 9 Cal.5th at p. 700.) Accordingly, “[i]n order to justify a
remand for the court to consider striking his serious felony enhancement while
8
maintaining the remainder of his bargain, defendant [Stamps] [had to] establish not only
that Senate Bill 1393 applie[d] 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.” (Id. at p. 701.)
The Supreme Court found that “[n]othing in the language and legislative history of
Senate Bill 1393 suggest[ed] 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.” (Stamps, supra, 9 Cal.5th at p. 704.) It found that “Senate Bill 1393 [was]
silent regarding pleas and provide[d] no express mechanism for relief” (ibid.), which
“undercut[] any suggestion that the Legislature intended to create special rules for plea
cases involving serious felony enhancements.” (Ibid.) The court rejected defendant
Stamps’s contention that “the [trial] court on remand should be allowed to exercise its
discretion to reduce his prison term by five years but otherwise maintain the plea
bargain.” (Id. at p. 705.)
The Supreme Court made clear in Stamps that the proper remedy was not as the
defendant had argued “to simply allow the trial court to reduce his sentence by five years
while otherwise maintaining the remainder of the plea agreement.” (Stamps, supra, 9
Cal.5th at p. 708.) The court distinguished the circumstances in Harris v. Superior
Court, supra, 1 Cal.5th 984 (Harris), which involved Proposition 47’s postjudgment
procedure that allowed certain eligible defendants to petition for a recall of sentence in
order to have specified convictions resentenced as misdemeanors (see § 1170.18, subds.
(a), (b)),10 from the situation in Stamps. (Stamps, supra, at p. 704.) The court explained:
“[In Harris,] [t]he electorate [had] evinced an intent that these offenses be treated as
10
“In November 2014, the voters passed Proposition 47, The Safe Neighborhoods
and Schools Act, which reduced certain drug- and theft-related offenses from felonies or
‘wobblers’ to misdemeanors.” (People v. Martinez (2018) 4 Cal.5th 647, 651.)
The proposition also added section 1170.18. (See Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.)
9
misdemeanors no matter how or when a defendant suffered the conviction. As Harris
reasoned, to allow the prosecution, in response to a successful resentencing petition, to
withdraw from a plea agreement and reinstate dismissed charges would frustrate electoral
intent to treat these offenses uniformly as misdemeanors, essentially denying meaningful
relief to those convicted through plea bargains. (See Harris, supra, 1 Cal.5th at p. 992.)”
(Ibid.)
After agreeing that the passage of Senate Bill 1393 resulted in an ameliorative
change in the law that applied retroactively to permit a trial court to strike a serious
felony enhancement in furtherance of justice (§ 1385, subd. (a)), the Supreme Court set
forth the appropriate remedy for defendant Stamps. The court stated: “If he desires, [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.” (Stamps, supra, 9 Cal.5th at
p. 707.) The court further explained: “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.]” (Ibid.)
The court stressed that in any case, the trial court has the power to “withdraw its prior
approval of the plea agreement.” (Id. at p. 708.)
The Supreme Court concluded that the defendant “should be allowed to make an
informed decision whether to seek relief on remand” based on a full understanding of the
possible ramifications of any request to have the trial court exercise its discretion to strike
a prior serious felony enhancement pursuant to section 1385. (Stamps, supra, 9 Cal.5th at
p. 708.) In its disposition, the Supreme Court reversed the appellate court judgment
“with directions to remand the matter to the superior court to allow defendant an
opportunity to seek relief under Senate Bill 1393.” (Id. at p. 709.)
10
B. Firearm Enhancements Imposed under Section 12022.53
In this case, defendant argues that even though he agreed to a specific term of
imprisonment pursuant to a plea bargain, the case should be remanded to permit the trial
court to exercise its discretion under section 12022.53(h), as amended by Senate Bill 620.
Defendant maintains that he may raise this issue, even though he orally waived his right
to appeal when he entered his pleas and admissions and did not obtain a certificate of
probable cause.
1. Waiver of Right to Appeal
Defendant argues that the scope of his general waiver of his right to appeal did not
extend to “prospective sentencing errors” and that therefore we may reach the merits of
his contention that amended section 12022.53 retroactively applies to him. Defendant
insists that his appellate waiver did not encompass such errors because “the trial court did
not sufficiently advise [him] of his right to appeal,” he did not specifically waive future
sentencing errors, and he “did not knowingly and intelligently waive [his] appellate rights
with respect to prospective sentencing errors.” He also asserts that “[b]ecause [he] did
not knowingly and intelligently [waive] the right to appeal future sentencing errors, the
appeal cannot in any sense be construed as an attack on the validity of the plea.”
a. Background
In a letter to the Deputy District Attorney Miguel Valdovinos, dated April 27,
2015, defendant, who was representing himself, stated that he was contacting Valdovinos
to settle the case. In the letter, defendant stated in part, “I want to get this case over with.
If this requires my pleading guilty and waiving my right to appeal, then I will accept that
along with whatever amount of time you feel is reasonable.”
At the change of plea hearing on May 6, 2015, the prosecutor told the court that
the terms of the parties’ plea agreement included a waiver of appellate rights. Before
accepting defendant’s pleas and admissions, the court advised defendant of the
constitutional rights that he would give up by pleading guilty, elicited defendant’s waiver
11
of those rights, and informed defendant of the consequences of such pleas and
admissions. Specifically, as to the right to appeal, the trial court told defendant, “And
you’re also, by this plea, waiving any right to appeal. Do you understand that?”
Defendant replied, “Yeah.”
b. Law Governing Waiver of Right to Appeal
“Just as a defendant may affirmatively waive constitutional rights to a jury trial, to
confront and cross-examine witnesses, to the privilege against self-incrimination, and to
counsel as a consequence of a negotiated plea agreement, so also may a defendant waive
the right to appeal as part of the agreement. [Citations.]” (People v. Panizzon (1996) 13
Cal.4th 68, 80 (Panizzon).) “To be enforceable, a defendant’s waiver of the right to
appeal must be knowing, intelligent, and voluntary. [Citations.] Waivers may be
manifested either orally or in writing. [Citation.]” (Ibid.)
The Supreme Court in Panizzon agreed that People v. Sherrick (1993) 19
Cal.App.4th 657 and People v. Vargas (1993) 13 Cal.App.4th 1653 (Vargas) “generally
support[ed] the proposition that a defendant’s general waiver of the right to appeal, given
as part of a negotiated plea agreement, will not be construed to bar the appeal of
sentencing errors occurring subsequent to the plea.” (Panizzon, supra, 13 Cal.4th at
p. 85, fn. omitted.) The Supreme Court pointed out, however, that “the defendants in
those decisions were attempting to appeal sentencing issues that were left unresolved by
the particular plea agreements involved.” (Ibid.) The court explained that “[i]n each of
those decisions, the appellate court viewed the sentencing issue as not being within the
contemplation and knowledge of the defendant at the time the waiver was made and so
refused to extend thereto a general waiver of the right to appeal.” (Ibid.)
In Panizzon, the Supreme Court observed that “the sentence imposed by the court
was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea
agreement” (Panizzon, supra, 13 Cal.4th at p. 86) and that “the essence of [the]
defendant’s claim [was] that his sentence [was] disproportionate to his level of culpability
12
[citation], a factor that . . . was known at the time of the plea and waiver.” (Ibid.) In
addition, the express terms of defendant Panizzon’s waiver “specifically extended to any
right to appeal [the specified] sentence.” (Ibid.) The Supreme Court concluded that the
defendant was seeking “appellate review of an integral element of the negotiated plea
agreement, as opposed to a matter left open or unaddressed by the deal.” (Ibid.)
It is generally understood that a defendant’s “general waiver of appeal rights
ordinarily includes error occurring before but not after the waiver because the defendant
could not knowingly and intelligently waive the right to appeal any unforeseen or
unknown future error. (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Thus, a
waiver of appeal rights does not apply to ‘ “possible future error” [that] is outside the
defendant’s contemplation and knowledge at the time the waiver is made.’ [Citations.]”
(People v. Mumm (2002) 98 Cal.App.4th 812, 815.)
c. The Validity of Defendant’s General Waiver of His Right to Appeal
To the extent defendant is asserting that his waiver of the right to appeal was
unenforceable because it was not knowing and intelligent, defendant is in effect
challenging the validity of his plea. We cannot reach this assertion in the absence of a
certificate of probable cause.
“[I]ssues going to the validity of a plea require compliance with section 1237.5.
[Citation.] . . . [A] certificate is required when a defendant claims that warnings regarding
the effect of a guilty plea on the right to appeal were inadequate. [Citation.]” (Panizzon,
supra, 13 Cal.4th at p. 76.) “[A] defendant who waives the right to appeal as part of a
plea agreement must obtain a certificate of probable cause to appeal on any ground
covered by the waiver, regardless of whether the claim arose before or after the entry of
the plea. Absent such a certificate, the appellate court lacks authority under California
Rules of Court, rule 8.304(b) to consider the claim because it is in substance a challenge
to the validity of the appellate waiver, and therefore to the validity of the plea.” (People
v. Espinoza (2018) 22 Cal.App.5th 794, 797.)
13
As Justice Baxter explained in his concurring opinion in People v. Buttram (2003)
30 Cal.4th 773, “[a]n attempt to appeal the enforceability of the appellate waiver itself
(for example, on grounds that it was not knowing, voluntary, and intelligent, or had been
induced by counsel’s ineffective assistance) would not succeed in circumventing the
certificate requirement. This is because, however important and meritorious such a
challenge might be, it too would manifestly constitute an attack on the plea’s validity,
thus requiring a certificate in any event.” (Id. at p. 793, conc. opn. of Baxter, J.).)
d. The Scope of Defendant’s General Waiver of His Right to Appeal
Defendant also contends that “the scope of [his] appellate waiver did not extend to
sentencing issues that arose after the plea” and that consequently the waiver does not bar
him from asking this court to remand the case to permit the trial court to exercise its
discretion under section 12022.53(h), as amended. This court has concluded “[b]ased on
our review of the relevant authorities, [that] a certificate of probable cause is not required
[to resolve] the issue of whether the defendant’s appellate claim falls within the scope of
an appellate waiver.” (People v. Becerra (2019) 32 Cal.App.5th 178, 188 (Becerra),
review den. May 22, 2019, S254821.)
“ ‘A negotiated plea agreement is a form of contract, and it is interpreted
according to general contract principles. [Citations.]’ (People v. Shelton (2006) 37
Cal.4th 759, 767 (Shelton).) Likewise, ‘[b]ecause waivers of appellate rights are
ordinarily found in the context of a plea bargain, the scope of the waiver is approached
like a question of contract interpretation—to what did the parties expressly or by
reasonable implication agree? [Citations.]’ (In re Uriah R. (1999) 70 Cal.App.4th 1152,
1157.)” (Becerra, supra, 32 Cal.App.5th at pp. 188-189.) The fundamental goal in
interpreting a plea agreement is to effectuate “ ‘the mutual intention of the parties’
[Citation.]” (Shelton, supra, at p. 767.)
Ordinarily, a general waiver of the right to appeal does not encompass sentencing
errors outside of the defendant’s contemplation and knowledge at the time of the
14
negotiated plea and waiver. (See Vargas, supra,13 Cal.App.4th at pp. 1661-1662
[alleged error in calculating conduct credits]; cf. Panizzon, supra, 13 Cal.4th at
pp. 85-86.) We conclude that defendant’s claims on appeal are outside the scope of his
waiver of his right to appeal for the following reasons. First, a future change in
sentencing law may be deemed incorporated into a plea agreement if the Legislature or
the electorate so intends. (See Doe, supra, 57 Cal.4th at pp. 66, 71, 73-74; Harris, supra,
1 Cal.5th at pp. 990-992; see also Stamps, supra, 9 Cal.5th at pp. 695-696; People v.
Baldivia (2018) 28 Cal.App.5th 1071, 1078 (Baldivia).) Second, defendant’s waiver of
his appellate rights was a general waiver that did not mention sentencing at all.11 Third,
the 2017 amendment of section 12022.53(h) was outside of defendant’s contemplation
and knowledge at the time of his negotiated plea and waiver in 2015. Similarly, at the
time of defendant’s plea and waiver, the possibility of a Franklin hearing pursuant to
Franklin, supra, 63 Cal.4th 261 was also outside of defendant’s contemplation and
knowledge since that case had not yet been decided and under then existing law, he
would not be entitled to a youth offender parole hearing. (See Stats. 2013, ch. 312, §§ 3,
4, 5.)
Significantly, in 2019, the Legislature enacted section 1016.8 (Stats. 2019,
ch. 586, § 1), which went into effect on January 1, 2020 (see Cal. Const., art. IV, § 8,
subd. (c); see also Gov. Code § 9600, subd. (a)). Section 1016.8 “codified [the Supreme
Court’s] decision in Doe that the circumstance ‘the parties enter into a plea agreement
does not have the effect of insulating them from changes in the law that the Legislature
has intended to apply to them’ (§ 1016.8, subd. (a)(1)).” (Stamps, supra, 9 Cal.5th at
p. 705.) Section 1016.8 also provides in part: “A provision of a plea bargain that
The Supreme Court has indicated that a “general waiver” means “a waiver that
11
is nonspecific, e.g., ‘I waive my appeal rights’ or ‘I waive my right to appeal any ruling
in this case.’ ” (Panizzon, supra, 13 Cal.4th at p. 85, fn. 11.) In Panizzon, the waiver
was not a general waiver in that the written waiver and plea form initialed and signed by
the defendant stated, “I hereby waive and give up my right to appeal from the sentence I
will receive in this case.” (Id. at p. 82.)
15
requires a defendant to generally waive future benefits of 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.”12 (§ 1016.8, subd. (b), italics
added.)
People v. Barton (2020) 52 Cal.App.5th 1145 (Barton), review denied October 21,
2020, S264285, recently considered section 1016.8. In that case, a defendant, who had
waived her right to appeal pursuant to a plea agreement, contended on appeal that an
ameliorative change to an enhancement statute applied retroactively to invalidate a pair of
consecutive three-year enhancements (Health & Saf. Code, former § 11370.2, subd. (c)).
(See Barton, supra, at pp. 1149, 1151.) The appellate court concluded that section
1016.8 retroactively applies to all cases not yet final on appeal because nothing in
statutory text or legislative history of Assembly Bill No. 1618 (2019-2020 Reg. Sess.),
which added section 1016.8, clearly signals that the Legislature intended the new section
to apply only prospectively. (Barton, supra, at p. 1153.) The court further concluded
that consequently, the “defendant’s blanket waiver of the right ‘to appeal from [the trial
court’s] sentence’ [did] not preclude her from seeking retroactive application of [the
senate bill amending Health and Safety Code section 11370.2].” (Id. at p. 1154,
fn. omitted.) Reasoning analogous to Barton’s applies here.
For all the foregoing reasons, defendant’s present contentions—that he is entitled
to retroactive application of amended section 12022.53(h) and the Franklin decision—
were not rendered noncognizable on appeal by his general waiver of the right to appeal.
2. Certificate of Probable Cause Requirement
Defendant acknowledges that “the plea agreement included an agreed-upon
sentence of 50 years to life.” However, he asserts that there was no need for him to
obtain a certificate of probable cause. Citing Doe, supra, 57 Cal.4th at pp. 70-71, 73-74,
12
For purposes of section 1016.8, “ ‘plea bargain’ has the same meaning as
defined in subdivision (b) of [s]ection 1192.7.’ ” (§ 1016.8, subd. (c).)
16
he contends that his claim under section 12022.53(h), as amended after his negotiated
plea, does not “call into question” the validity of his negotiated plea because “the plea
agreement itself incorporated the newly-enacted [sic] law” (italics omitted). He
maintains that the parties’ plea agreement should be interpreted to include the trial court’s
recently acquired discretion to strike the firearm enhancements under
section 12022.53(h). Defendant cites People v. Hurlic (2018) 25 Cal.App.5th 50,
Baldivia, supra, 28 Cal.App.5th 1071, and now Stamps in support of his position.
In Stamps, the Supreme Court resolved the question whether a certificate of
probable cause is necessary for a defendant to argue on appeal that a newly enacted
ameliorative law applies retroactively to potentially reduce an agreed-upon sentence.
As did the defendant in Stamps, defendant is arguing that an ameliorative change to an
enhancement provision, which went into effect while his appeal was pending, applies to
him. (Stamps, supra, 9 Cal.5th at pp. 695-696.) Defendant is not “seek[ing] to put aside
or withdraw his plea” (id. at p. 698) and he is not challenging his plea as defective or
invalid when made. (Id. at pp. 696, 698.) Accordingly, a certificate of probable cause is
not required to assert his retroactivity claim. (See id. at pp. 692, 696-698.)
3. Retroactive Application of Amended Section 12022.53
Defendant asserts that amended section 12022.53(h) retroactively applies to his
convictions based on (1) its statutory language that makes it applicable at any
“resentencing” proceeding and (2) Estrada’s presumptive inference of retroactivity,
which he maintains applies since the People have not rebutted it. (See Estrada, supra, 63
Cal.2d 740.) We agree that the amendment of section 12022.53(h), which eliminates the
prior restriction on the trial court’s ability to strike a firearm enhancement imposed under
section 12022.53, constitutes an ameliorative change within the meaning of Estrada.
(See Baldivia, supra, 28 Cal.App.5th at pp. 1078-1079; cf. Stamps, supra, 9 Cal.5th at
p. 699.) The People have not pointed to anything in the text or legislative history of
Senate Bill 620 that clearly signals that the Legislature intended section 12022.53(h), as
17
amended, to have only prospective application. (See Barton, supra, 52 Cal.App.5th at
p. 1153 [“Neither the text of the statute nor the legislative history of Assembly Bill 1618
‘clearly signal’ the intent of ‘prospective-only application.’ [Citation.]”]; People v. Frahs
(2020) 9 Cal.5th 618, 632 [“statute does not plainly communicate an intent that its
provisions would apply only prospectively”], 635 [court did not “perceive in the
legislative history a clear indication that the Legislature did not intend for the statute to
apply retroactively”]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304
[“nothing in Proposition 57’s text or ballot materials rebuts [Estrada’s inference of
retroactivity]”.) Accordingly, section 12022.53(h), as amended, applies to defendant’s
case because his judgment is not yet final. (See Estrada, supra, 63 Cal.2d at p. 745
[“The amendatory act imposing the lighter punishment can be applied constitutionally to
acts committed before its passage provided the judgment convicting the defendant of the
act is not final”]; cf. Stamps, supra, at p. 699.)
4. Potential Consequences to the Plea Agreement
Undoubtedly, section 12022.53(h), as amended, was intended to eliminate
mandatory firearm enhancements so that relief would be available to deserving
defendants and allow trial courts at the time of sentencing and resentencing to exercise
their discretion to strike or dismiss a firearm enhancement in the interests of justice
pursuant to section 1385. (See Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on
Sen. Bill No. 620 (2017-2018 Reg. Sess.) as amended June 15, 2017, pp. 1, 3-4, 6;
Sen. 3d Reading, Analysis of Sen. Bill No. 620 (2017-2018 Reg. Sess.) as amended
June 15, 2017, pp. 1-3; Assem. Com. on Appropriations, Rep. on Sen. Bill No. 620
(2017-2018 Reg. Sess.) as amended June 15, 2017, pp. 1-2.) But defendant does not
dispute that Senate Bill 620 and its legislative history say nothing regarding the
legislative intent as to agreed-upon sentences. (Cf. Stamps, supra, 9 Cal.5th at p. 704
[“That Senate Bill 1393 is silent regarding pleas and provides no express mechanism for
18
relief undercuts any suggestion that the Legislature intended to create special rules for
plea cases involving serious felony enhancements”].)
Under the reasoning of Stamps, in order to justify a remand to allow the trial court
to consider striking an enhancement otherwise required to be imposed by
section 12022.53 in the interest of justice (§ 1385) without potentially affecting the rest
of his plea bargain, defendant had to establish not only that current section 12022.53(h)
“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, 9 Cal.5th at p. 701.) In his
supplemental opening brief filed following the Supreme Court’s transfer order, defendant
does not claim that “the language [or the] legislative history of Senate Bill [620] 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.” (Id. at
p. 704.) Instead, defendant merely submits that “[t]o the extent that this court’s original
disposition [was] in tension with . . . Stamps, the court may wish to modify the
remedy . . . .”
The appropriate remedy has been carefully explained by the Supreme Court in
Stamps. Both defendant and the trial court upon remand should now understand the
potential repercussions to the parties’ plea agreement that can result from retroactive
application of amended section 12022.53(h). (See Stamps, supra, 9 Cal.5th at
pp. 707-708.) Armed with this information, defendant, if he still desires, may seek to
have the trial court exercise its discretion to strike “an enhancement otherwise required to
be imposed by [section 12022.53]” pursuant to section 1385. (§ 12022.53(h).) However,
as suggested in Stamps, in the absence of legislative intent to the contrary, the court lacks
authority “to unilaterally modify the plea agreement by striking [an enhancement that is
an integral part] but otherwise keeping the remainder of the bargain.” (Stamps, supra, at
p. 707.) If the court does so and the prosecution has not agreed to the modification, the
19
prosecution is entitled to withdraw assent to the plea bargain. (Ibid.) In addition, “[t]he
court’s exercise of its new discretion to strike the [section 12022.53] enhancement,
whether considered a new circumstance in the case or simply a reevaluation of the
propriety of the bargain itself, would fall within the court’s broad discretion to withdraw
its prior approval of the plea agreement.” (Id. at p. 708.)
In light of the potential consequences to the plea agreement, “it is ultimately
defendant’s choice whether he wishes to seek relief under Senate Bill [620].” (Stamps,
supra, 9 Cal.5th at p. 708.) The case will be remanded to allow defendant the
opportunity to request the court’s exercise of discretion pursuant to section 1385, as now
permitted by section 12022.53(h).
C. Remand for a Franklin Hearing
When defendant was sentenced on June 5, 2015, the recently enacted youth
offender parole hearing statutes did not apply to him because he was not under 18 years
of age at the time of his offenses. (See Stats. 2013, ch. 312, §§ 3, 4, 5.) Those statutes
were later amended to apply to older offenders like him. (See Stats. 2015, ch. 471,
§§ 1, 2; Stats. 2017, ch. 684, §§ 1.5, 2.5.)
In Franklin, the California Supreme Court determined that an offender who would
be entitled to a hearing under youth offender parole hearing statutes should be afforded a
“sufficient opportunity to make a record of information relevant to his eventual youth
offender parole hearing.”13 (Franklin, supra, 63 Cal.4th at p. 284.) Defendant asks this
court to remand this case for a Franklin hearing to give him an opportunity to develop a
record of mitigating evidence relevant to his future youth offender parole hearing.
The People do not object to such remand.
13
Although section 3051“excludes several categories of juvenile offenders from
eligibility for a youth offender parole hearing” (Franklin, supra, 63 Cal.4th at p. 277),
there has been no suggestion that defendant falls within any of those exclusions.
(See § 3051, subd. (h).)
20
In Franklin, the Supreme Court found it was “not clear whether Franklin had
sufficient opportunity to put on the record the kinds of information that sections 3051 and
4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at
p. 284.) Consequently, it “remand[ed] the matter to the trial court for a determination of
whether Franklin was afforded sufficient opportunity to make a record of information
relevant to his eventual youth offender parole hearing.” (Ibid.; see id. at pp. 286-287.)
It provided the following guidance: “If the trial court determines that Franklin did not
have sufficient opportunity, then the court may receive submissions and, if appropriate,
testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the
California Rules of Court, and subject to the rules of evidence. Franklin may place on the
record any documents, evaluations, or testimony (subject to cross-examination) that may
be relevant at his eventual youth offender parole hearing, and the prosecution likewise
may put on the record any evidence that demonstrates the juvenile offender’s culpability
or cognitive maturity, or otherwise bears on the influence of youth-related factors.”
(Id. at p. 284.)
The foregoing proceeding is commonly referred to as a “Franklin hearing.”
(See In re Cook (2019) 7 Cal.5th 439, 459.) As indicated, it “derives from the statutory
provisions of sections 3051 and 4801. [Citations.]” (Ibid.) Section 3051,
subdivision (a)(1), currently provides in relevant part: “A youth offender parole hearing
is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole
suitability of any prisoner who was 25 years of age or younger . . . at the time of the
controlling offense.” The section defines “controlling offense” to mean “the offense or
enhancement for which any sentencing court imposed the longest term of
imprisonment.”14 (§ 3051, subd. (a)(2)(B).) Section 3051, subdivision (b)(3), specifies:
14
The Supreme Court in Franklin pointed out: “[T]he trial court sentenced
Franklin to a mandatory term of 25 years to life under section 190 for first degree murder
and to a consecutive mandatory term of 25 years to life under section 12022.53 on the
firearm enhancement. Either the homicide offense or the firearm enhancement could be
21
“A person who was convicted of a controlling offense that was committed when the
person was 25 years of age or younger and for which the sentence is a life term of 25
years to life shall be eligible for release on parole at a youth offender parole hearing
during the person’s 25th year of incarceration. The youth parole eligible date for a
person eligible for a youth offender parole hearing under this paragraph shall be the first
day of the person’s 25th year of incarceration.” Section 4801, subdivision (c), states:
“When a prisoner committed his or her controlling offense, as defined in subdivision (a)
of [s]ection 3051, when he or she was 25 years of age or younger, the board, in reviewing
a prisoner’s suitability for parole pursuant to [s]ection 3041.5, shall give great weight to
the diminished culpability of youth as compared to adults, the hallmark features of youth,
and any subsequent growth and increased maturity of the prisoner in accordance with
relevant case law.”
We agree that defendant should have an opportunity for a Franklin hearing.
Consequently, it is unnecessary to reach defendant’s constitutional contentions.
DISPOSITION
We reverse the judgment. Upon remand, the court shall allow defendant an
opportunity to seek relief under section 1385, as permitted by section 12022.53(h), and
the court shall also determine whether defendant had an adequate opportunity to make a
record of information that will be relevant to his eventual youth offender parole hearing,
and, if he did not, allow the parties the opportunity to make a record of such information
pursuant to Franklin, supra, 63 Cal.4th 261.
considered the ‘controlling offense’ under section 3051, subdivision (a)(2)(B).”
(Franklin, supra, 63 Cal.4th at p. 279.)
22
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
PREMO, Acting P.J.
_______________________________
GROVER, J.
People v. Antuna
H042678