The opinion
Filed 6/25/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A151809
v.
BRYAN ALEXANDER, (San Francisco County
Super. Ct. No. SCN220303-01)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, A152247
v. (San Francisco County
RAY A. FARR, Super. Ct. No. SCN220303-02)
Defendant and Appellant.
Following a series of robberies in August and September 2012, a San Francisco
police officer reviewed police reports of the crimes and surveillance video of eight of
them before arresting defendants and appellants Bryan Alexander and Ray Farr.1
Alexander and Farr subsequently pled guilty to several of the offenses. In the published
portion of this opinion we reject appellants’ contention the trial court erred in denying
their motion to suppress evidence discovered pursuant to their warrantless arrest. We
conclude, among other things, the trial court properly admitted the officer’s testimony
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II and III.
1
By separate order this court has consolidated appellants’ appeals for purposes of
argument and decision.
1
that the videos helped provide probable cause for appellants’ arrest. We reject
appellants’ arguments this testimony constituted hearsay, relied on unauthenticated
writings and violated the secondary evidence rule. Further, we determine the information
possessed by the officer was sufficiently reliable to justify the arrest. In the unpublished
part of this opinion, we reject appellants’ claim the trial court erred in calculating conduct
credits, and we remand to the trial court to exercise its discretion regarding whether to
strike a five-year sentence enhancement imposed on Alexander based on a prior serious
felony conviction.
BACKGROUND
In April 2017, appellants were charged in a first amended information with 14
counts of second-degree robbery (Pen. Code, § 211);2 nine counts of second-degree
burglary (§ 459); and one count of receiving stolen property (§ 496, subd. (a)). Farr was
charged with two additional counts of second degree robbery; one additional count of
second degree burglary; one count of making a criminal threat (§ 422); and one count of
assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). The
information also alleged that Alexander had suffered three prior prison terms (§ 667.5,
subd. (b)) and one prior violent or serious felony conviction (§ 667), and the information
alleged that Farr had suffered six prior prison terms (§ 667.5, subd. (b)).
Prior to the filing of the amended information, Alexander moved under section
1538.5 to suppress evidence discovered pursuant to the warrantless arrest of himself and
Farr, and Farr joined in the motion. In June 2016, following a hearing, the trial court
denied the motion.
In May 2017, pursuant to a negotiated disposition, Alexander pleaded guilty to
three counts of robbery (counts 12, 23, and 26) and admitted a prior conviction for
attempted robbery and one prior prison term. Farr pleaded guilty to two counts of
robbery (counts 5 and 14) and admitted four prior prison terms.3
2
All undesignated statutory references are to the Penal Code.
3
The facts of the robberies to which appellants pleaded guilty are not relevant on appeal.
2
In June 2017, in accordance with the plea bargain, the trial court sentenced
Alexander to 14 years in prison, consisting of four years on count 12, two years on count
23, two years on count 26, five years for the prior conviction of attempted robbery
(§ 667, subd. (a)(1)), and one year for the prior prison term.4 Alexander was given credit
for time served of 2,002 days, consisting of 1,741 days in jail and 261 days of conduct
credit. The trial court sentenced Farr to 10 years in prison, consisting of five years on
count five, one year on count 14, and one year for each of the four prison priors. Like
Alexander, Farr was given credit for time served of 2,002 days, consisting of 1,741 days
in jail and 261 days of conduct credit.
Both Alexander and Farr appealed.
DISCUSSION
I. The Trial Court Did Not Err in Denying Appellants’ Motion to Suppress
The Fourth Amendment to the United States Constitution protects “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures . . . .” (U.S. Const., 4th Amend.) Under section 1538.5,
subdivision (a)(1)(A), a defendant may move to suppress evidence on the ground that a
“search or seizure without a warrant was unreasonable.” “A warrantless search is
presumed to be unreasonable, and the prosecution bears the burden of demonstrating a
legal justification for the search. [Citation.] ‘The standard of appellate review of a trial
court’s ruling on a motion to suppress is well established. We defer to the trial court’s
factual findings, express or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure was reasonable under
the Fourth Amendment, we exercise our independent judgment.’ ” (People v. Redd
(2010) 48 Cal.4th 691, 719.)
4
The abstract of judgment in Alexander’s case incorrectly describes the five-year
enhancement under section 667, subd. (a)(1) as being under section 667.5, subd. (a),
which does not provide for a five-year enhancement. We will direct that the abstract of
judgment be corrected on remand.
3
“ ‘[A] warrantless arrest by a law [enforcement] officer is reasonable under the
Fourth Amendment where there is probable cause to believe that a criminal offense has
been or is being committed.’ ” (People v. Thompson (2006) 38 Cal.4th 811, 817.)
“ ‘Probable cause exists when the facts known to the arresting officer would persuade
someone of “reasonable caution” that the person to be arrested has committed a crime.’ ”
(Id. at p. 818.) Where an officer makes a warrantless arrest based on a belief they have
probable cause to do so, “the officer must testify to the facts or information known to him
on which his belief is based” because “the court and not the officer must make the
determination whether the officer’s belief is based upon reasonable cause.” (People v.
Boyles (1955) 45 Cal.2d 652, 656.) The prosecution bears the burden of proving the
reasonableness of a warrantless arrest. (People v. Williams (1999) 20 Cal.4th 119, 130.)
The central issue on appeal is whether the arresting officer’s testimony regarding
the robbery surveillance videos was admissible and sufficient to establish probable cause
for the warrantless arrest of appellants.
A. Sergeant Maguire’s Testimony at the Hearing on the Motion to Suppress
San Francisco Police Sergeant Thomas Maguire investigated a series of 10
robberies in August and September 2012. The suspects were two African-American
males, one taller and thinner than the other. Maguire obtained police reports regarding all
of the incidents and surveillance videos of eight of the incidents. He viewed and
compared the videos multiple times. Maguire testified about his investigation of seven of
the robberies.
First, a robbery was reported on August 19, 2012, at the San Bruno Cafe. Another
police officer, Sergeant Discenza, gave Sergeant Maguire a surveillance video, saying it
came from the cafe robbery. The video showed a single robber in a leather jacket.
Maguire identified two photographs as stills from the video, admitted as exhibits 1 and 2.
Second, a robbery was reported on August 26, 2012, at a Round Table Pizza on
Mission Street. Sergeant Maguire responded to the scene, interviewed witnesses, and
viewed surveillance video that showed two African-American male suspects commit a
robbery as described by the witnesses. One suspect was taller and thinner than the other.
4
Maguire believed one of the two suspects was also the perpetrator of the San Bruno Cafe
robbery.
Third, a robbery was reported on August 28, 2012, at a business called Underdog
on Irving Street. Sergeant Maguire went to the location and watched a surveillance
video, which showed a sole robbery suspect.
Fourth, a robbery was reported on September 7, 2012, at a Burger King. Sergeant
Maguire responded to the scene and watched a surveillance video that showed two
African-American male suspects, one taller and thinner than the other. Maguire believed
they were the same two suspects he had seen in the video from the Round Table robbery.
The shorter and heavier suspect was wearing a brown long-sleeved shirt and black shoes
with white soles. Maguire identified two photographs as stills from the video, admitted
as exhibits 4 and 5.
Fifth, a robbery was reported on September 10, 2012, at a business called “Uniqlo
Services” on Ocean Avenue. Sergeant Maguire obtained the police report and
surveillance video. The video showed two African-American male suspects, one taller
and thinner than the other. Maguire identified one photograph as a still from the video
showing a person who he believed to be the shorter suspect, admitted as exhibit 6. He
was wearing black shoes with white soles, like those worn by the shorter suspect in the
Burger King robbery.
Sixth, a robbery was reported on September 11, 2012, at a business called “The
Hot Tubs” on Van Ness Avenue. Sergeant Maguire obtained the police report and
surveillance video of the incident and went to the scene the day after the robbery. The
video showed two African-American male suspects, one taller and thinner than the other.
Maguire identified four photographs as stills from the video, admitted as exhibits seven
through ten. Exhibits seven and eight showed the shorter suspect wearing a dark-colored
beanie cap and black shoes with white soles. Exhibits nine and ten showed the taller
suspect, who had “scruffy” facial hair and was wearing a hooded sweatshirt.
Seventh, a robbery was reported on September 14, 2012, at a Subway shop on
Polk Street. Sergeant Maguire read the police report and viewed the surveillance video
5
that was collected in the investigation. He also went to the scene and spoke to people
who described the incident. The shop looked the same as it did on the video, and the
witnesses’ description of the robbery matched what he saw in the video. The video
showed two African-American male suspects, one taller and thinner than the other.
Maguire identified two photographs as stills from the video, admitted as exhibits 11 and
12.
Sergeant Maguire arrested appellants on September 16, 2012. At 5:54 p.m. on that
day, he heard a broadcast reporting a robbery at a restaurant called “Sweet Chinito” on
Mission Street. The suspects were described as two African-American men, one taller
and one shorter. Maguire thought they might be the perpetrators in the robberies he was
investigating.
After hearing the broadcast about the Sweet Chinito robbery, Sergeant Maguire
went to the area of 7th Street and Market Street, because the dispatch said the victim’s
cell phones were stolen and stolen cell phones are often sold in that location. He arrived
in the general area in an unmarked vehicle about 20 minutes after the broadcast and
observed two men cross the street about 12 feet in front of him. He “immediately
recognized” them as the suspects in the robberies he had been investigating. Both were
African-American, and one was taller and thinner than the other. Maguire noticed the
shorter man was wearing black shoes with white soles similar to those he had seen in
several videos, as well as a leather jacket which resembled one worn by the suspect in the
San Bruno Cafe robbery video. The shorter man’s height, weight, build, face, and
demeanor also resembled one of the suspects. The taller man was wearing dark pants and
boots that resembled clothes worn by a suspect in the videos, and his facial features
(including facial hair) and confident manner were similar to a suspect in the videos.
Maguire identified Alexander as the shorter man and Farr as the taller man he observed
on September 16, 2012.
Sergeant Maguire called for backup, followed appellants for a short distance, and
then exited his vehicle and apprehended them at gunpoint. Maguire searched a black bag
Farr was carrying and found two cell phones. Maguire asked an officer at the Sweet
6
Chinito restaurant to call the phones that had been stolen, and the phones recovered by
Maguire rang. Another officer found car keys on Alexander that were connected to a
white Chevy that looked like the getaway car in one of the robbery videos. Maguire
searched the vehicle and found a black replica handgun and a dark-colored beanie cap.
Sergeant Maguire identified five photographs of appellants taken on September
16, 2012, admitted into evidence as exhibits 13 through 17.
B. The Trial Court’s Ruling
Appellants sought an order suppressing all evidence obtained as a result of the
warrantless arrest. After argument from counsel, the trial court denied the motion to
suppress. The court said it credited Sergeant Maguire’s testimony that “he immediately
recognized [appellants] as the suspects whom he had viewed on multiple times in
multiple videotapes of prior and relatively recent robbery incidents.” The court further
found that some of the stills from the videos corroborated Maguire’s testimony.
Although the quality of the images varied, the court observed that the photos of the San
Bruno Cafe robbery (exhibits one and two) were “fairly recognizable depictions” of
Alexander, and the photos from the robbery at The Hot Tubs (exhibits nine and ten) were
“pretty well recognizable depictions” of Farr.5 The court concluded Maguire had
probable cause to arrest appellants.
C. Admissibility of Sergeant Maguire’s Testimony About the Robbery Videos
Appellants contend the prosecution below failed to prove the surveillance videos
that Sergeant Maguire described actually depicted the robberies he was investigating.
More narrowly, they contend the prosecution failed to meet its burden on that point
because Maguire’s testimony connecting the videos to the robberies was based on
hearsay. As appellant Alexander puts it, “no person with personal knowledge of any
incident testified that the video watched by Maguire accurately depicted it, and no person
5
The trial court, going from its memory, referenced exhibit numbers “10 and 11, or
perhaps 11 and 12,” but it is clear the court meant exhibits 9 and 10, which clearly depict
the same person at the same robbery—exhibits 10 and 11 depict two different robberies
and exhibits 11 and 12 depict two different people.
7
with personal knowledge testified how any incident was video recorded or how any video
watched by Maguire was generated.”
In arguing that Sergeant Maguire’s testimony about the surveillance videos was
inadmissible, appellants correctly observe that the hearsay rule was applicable during the
hearing on the motion to suppress. (See Hewitt v. Superior Court (1970) 5 Cal.App.3d
923, 927 [in reference to hearings on motions to suppress, stating “Evidence Code section
300 makes it clear that, except as otherwise provided by statute, the Evidence Code
applies to every evidentiary hearing in the state courts. . . .”]; Jauregi v. Superior Court
(1999) 72 Cal.App.4th 931, 940 [in the context of forfeiture proceedings, stating
“Accordingly, because no statute exists which exempts such an evidentiary hearing from
the application of the Evidence Code, all Evidence Code provisions which deal with
hearsay apply . . .”].)
Appellants then proceed to argue that Sergeant Maguire’s assertions that the
surveillance videos he viewed corresponded to the robberies under investigation was
based on inadmissible hearsay. Appellants’ contention is misplaced. It is true that
Maguire’s testimony was not based on his personal knowledge. Instead, his belief that
the videos depicted the robberies was based on information received from witnesses to
the robberies and other officers, based on the videos being associated with the cases in
police records, or based on receiving the videos from the victims. However, “[i]t is
settled . . . that reasonable cause to justify an arrest may consist of information obtained
from others and is not limited to evidence that would be admissible at the trial on the
issue of guilt.” (People v. Boyles, supra, 45 Cal.2d at p. 656, citing Brinegar v. United
States (1949) 338 U.S. 160, 171–176.)
More to the point, Sergeant Maguire’s testimony was not subject to exclusion
under the hearsay rule because, even though it was based on (mostly implied) extra-
judicial statements, the testimony was not hearsay because it was offered only to show
the information he relied on in deciding to arrest appellants. (Evid. Code, § 1200.) As
explained in People v. King (1956) 140 Cal.App.2d 1, 5, “In each of the instances
objected to by the appellant the extra-judicial statements were offered in evidence not to
8
prove the truth of the matter asserted, but to establish probable cause to effect the search
and seizure. The truth of the information given to [the officer] was not in issue, nor was
it offered in evidence to prove any element of the offense against the appellant. The
evidence in question was offered solely to establish that the officer had reasonable or
probable cause to effect the search and seizure.” (See also Cantrell v. Zolin (1994) 23
Cal.App.4th 128, 132–133 [in context of administrative hearing following arrest for
vehicular offense, extrajudicial statement of officer about driver’s conduct “was relevant
to the issue whether [the arresting officer] had reasonable cause to believe plaintiff had
been driving under the influence” and “it was not hearsay because it was not offered to
prove the truth of the matter stated”]; People v. Magana (1979) 95 Cal.App.3d 453, 462
[an informant’s statement is “being offered to establish that the affiant had a reasonable
basis for believing the informer’s statement to be true—whether in fact true or not—to
justify the magistrate’s finding of probable cause.”]; Cal. Criminal Law (Cont.Ed.Bar
2017) Procedure and Practice, § 16.20, p. 421 [“Testimony offered only on the issue of
probable cause, which would be hearsay if offered for the truth of the matter asserted, is
not hearsay. For example, if a police officer testifies to the reported description of an
alleged robber, the testimony is not admitted to prove that the robber was as described; it
is offered to show that the officer has probable cause to detain, search, or arrest the
defendant.”]; cf. People v. Lucero (1998) 64 Cal.App.4th 1107, 1110 [observing that the
testimony deemed admissible in King is inadmissible as irrelevant “ ‘[if] the legality of
defendant’s arrest was not in issue’ ”].)6
6
King is cited with approval in another First District decision, People v. Romeo (2015)
240 Cal.App.4th 931, 946–947, although the decision describes the testimony at issue
there as admissible hearsay, rather than as admissible non-hearsay. (See ibid. [“The
pertinent hearsay exception here is Evidence Code section 1250, subdivision (a)(1), the
state-of-mind exception. Under that exception, Officer Miller’s testimony that he
obtained information from the database was admissible to prove his receipt of
information from an independent source.”].) That may be due to the fact that in Romeo
the legality of the search depended on the actual scope of a probation search condition,
rather than a determination of probable cause.
9
In the present case, Sergeant Maguire’s testimony about how he obtained the
surveillance videos and what he observed in the videos was not admitted to prove the
videos depicted the robberies or to prove the content of the videos. Instead, the testimony
was admitted to inform the trial court of the basis for Maguire’s belief he had probable
cause to arrest appellants. As explained below (Part I.D., post), the prosecution was
required to show that information was sufficiently reliable to support an objectively
reasonable finding of probable cause.
Appellants also contend the prosecution failed to demonstrate the surveillance
videos that Sergeant Maguire described were authentic within the meaning of Evidence
Code section 1400, which provides that “Authentication of a writing means (a) the
introduction of evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is or (b) the establishment of such facts by any other
means provided by law.” (See also People v. Goldsmith (2014) 59 Cal.4th 258, 266–267
(Goldsmith).) Video recordings are writings within the meaning of Evidence Code
section 1400. (Goldsmith, at p. 267.) Goldsmith explains that “[a]uthentication is
essentially a subset of relevance,” because a writing cannot be treated as relevant to the
issues in an action without some proof the writing is what it is purported to be. (Ibid.)
Although the prosecution was required to authenticate the videos Sergeant
Maguire described in his testimony, “the proof that is necessary to authenticate a
photograph or video recording varies with the nature of the evidence that the photograph
or video recording is being offered to prove and with the degree of possibility of error.”
(Goldsmith, at p. 267.) Goldsmith further explains, “The purpose of the evidence will
determine what must be shown for authentication, which may vary from case to case.
[Citation.] The foundation requires that there be sufficient evidence for a trier of fact to
find that the writing is what it purports to be, i.e., that it is genuine for the purpose
offered.” (Ibid.) “A photograph or video recording is typically authenticated by showing
it is a fair and accurate representation of the scene depicted. [Citations.] This foundation
may, but need not be, supplied by the person taking the photograph or by a person who
10
witnessed the event being recorded. [Citation.] It may be supplied by other witness
testimony, circumstantial evidence, content and location.” (Id. at pp. 267–268.)
In Goldsmith, the evidence at issue were photographs generated by a red light
traffic camera, “offered as substantive proof of defendant’s violation.” (Goldsmith,
supra, 59 Cal.4th at p. 267.) The authenticity of the photographs was supported in part
by a statutory presumption that printed representations are “ ‘presumed to be an accurate
representation of the images it purports to represent.’ ” (Id. at p. 268, quoting Evid.
Code, § 1553, subd. (a).) The showing of authenticity was also supported by testimony
from an officer who explained the operation of the camera system, based on information
he obtained from city engineers and the company that maintained the camera.
(Goldsmith, at pp. 264, 271.) Further, “the content of the photographs themselves may be
considered and here the content supplied further support for a finding that the images
were genuine.” (Id. at p. 271.)
In the present case, Sergeant Maguire’s testimony about the surveillance videos
was only admitted for the purpose of establishing the information he relied on in arresting
appellants.7 With that purpose in mind, we turn to the prosecution’s showing of
authenticity. Sergeant Maguire testified under oath about surveillance videos of seven
robberies. Maguire did not have personal knowledge of the robberies or how the videos
were made, but there is little reason to doubt the videos depict the robberies under
7
We need not decide whether a greater showing of authenticity would be required to
admit the videos as substantive evidence at trial, because the videos were relevant to the
probable cause determination if they bore indicia of reliability (see Part I.D., post), even
if (for some unlikely reason) the videos did not actually depict the charged robberies.
(Cf. Goldsmith, supra, 59 Cal.4th at pp. 265–266, 271–272 [authentication of images
from red light traffic camera at court trial on citation for running red light]; People v.
Chism (2014) 58 Cal.4th 1266, 1304 [authentication of photographs from surveillance
video at murder and robbery jury trial].) People v. Collins (1997) 59 Cal.App.4th 988,
994, and People v. Romeo, supra, 240 Cal.App.4th 931, upon which appellant Alexander
relies, are also distinguishable. The searches in those cases were based upon a warrant
(Collins) and a probation search condition (Romeo), and the validity of the searches
turned on evidence of the existence and scope of the warrant and search condition, rather
than a probable cause determination based on the information possessed by the officer.
(Collins, at p. 994; Romeo, at p. 952.)
11
investigation. Although the testimony was not detailed, Maguire explained, or it can
reasonably be inferred, that he obtained the videos from other officers, from case files, or
from the establishments that were robbed. That the surveillance videos came from the
robbery case files or were obtained from the locations of the robberies is circumstantial
evidence that the videos depict the robberies under investigation. (See People v. Smith
(2009) 179 Cal.App.4th 986, 1002 [authenticity determination based in part on location
of documents in defendant’s office]; People v. Gibson (2001) 90 Cal.App.4th 371, 383
[authenticity determination based in part on discovery of documents in search of
defendant’s home]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 [same].) As to
the Round Table and Subway robbery surveillance videos, Maguire testified the events
depicted in the videos matched the descriptions of the incidents he heard from witnesses.
Thus, the “content” (Goldsmith, supra, 59 Cal.4th at p. 268) of those two videos
corresponded to the robberies. The specific evidence authenticating those videos was
“circumstantial evidence” (ibid.) that corroborated the authenticity of the other videos,
which appeared to have been committed by the same suspects during the same time
frame. Photographs of stills from five of the videos were submitted into evidence; those
images contained timestamps corresponding to the dates of the robberies8 and
corroborated Maguire’s testimony by showing the videos he described did in fact exist.
In other words, “the content supplied further support for a finding that” the videos
depicted the robberies under investigation. (Id. at p. 271.) To conclude the videos did
not correspond to the robberies, one would need to speculate that persons provided videos
of other robberies to Maguire or that the videos were an elaborate fabrication. The
8
The one exception is exhibits 7 through 10, which depict the robbery at The Hot Tubs.
That robbery occurred on September 8, 2012, but the timestamps say September 9.
Although the discrepancy is unexplained, that does not undermine the fundamental
reliability of the video, given the unlikelihood robberies occurred on two consecutive
days. The name “The Hot Tubs” is visible in exhibit seven, so there is no question the
video came from that business. Further, even if it were true that robberies occurred at
The Hot Tubs on two consecutive days, this would not reduce the relevance of the
surveillance video in creating probable cause to arrest the perpetrators of the robbery
shown in the video.
12
implausibility of those scenarios reflects the low “degree of possibility of error” in the
present case. (Id. at p. 267.) Whether or not Maguire’s testimony would have been
sufficient to authenticate the videos for admission at trial on the underlying charges (see
fn. 7, ante), his testimony was a sufficient “prima facie” showing of authenticity for
purposes of the hearing on the motion to suppress. (Ibid.)
Appellants also argue their counsel were ineffective in failing to object to Sergeant
Maguire’s testimony under Evidence Code section 1523, which provides that “oral
testimony is not admissible to prove the content of a writing.”9 However, an objection on
the basis of that section, an aspect of the secondary evidence rule, would have been
misplaced, because Maguire’s testimony was admitted to explain the basis for the arrests,
not to prove the content of the videos. (Cf. People v. Myers (2014) 227 Cal.App.4th
1219, 1226 & fn 1 [testimony at robbery trial that video showed that store clerk raised his
hands offered to show use of fear].) In any event, defense counsel might have had a
tactical reason to avoid invoking Evidence Code section 1523. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266–267.) To wit, defense counsel may have preferred to avoid
admission of the surveillance videos, which might have demonstrated even more clearly
the objective reasonableness of the arrest. Without the videos themselves, the showing of
reasonableness could only be based on Maguire’s testimony and the stills from the
videos, which were less conclusive than the videos would have been, assuming (as we
must for purposes of the claim on direct appeal [see ibid.]) that appellants were the
perpetrators in the videos.
Appellants have not shown the court erred in admitting the testimony of Sergeant
Maguire at the hearing on the motion to suppress.10
9
We reject appellant Farr’s suggestion that his counsel did object on the ground of
Evidence Code section 1523. The portion of the record cited by Farr does not indicate
that counsel “fairly apprise[d]” the trial court of an objection under that provision or that
court “understood [that] issue [to be] presented.” (People v. Scott (1978) 21 Cal.3d 284,
290.)
10
Appellant Farr also contends the trial court erred in limiting his counsel’s cross-
examination of Sergeant Maguire. Specifically, his counsel asked Maguire to re-confirm
13
D. Sergeant Maguire’s Testimony Established Probable Cause
Did the information possessed by Sergeant Maguire support a finding of probable
cause to arrest appellants? “ ‘Probable cause to arrest exists if facts known to the
arresting officer would lead a person of ordinary care and prudence to entertain an honest
and strong suspicion that an individual is guilty of a crime.’ [Citation.] ‘[T]he probable-
cause standard’ . . . ‘is incapable of precise definition or quantification into percentages
because it deals with probabilities and depends on the totality of the circumstances.’
[Citation.] ‘ “[T]he substance of all the definitions of probable cause is a reasonable
ground for belief of guilt,” ’ and ‘the belief of guilt must be particularized with respect to
the person to be searched or seized. . . .’ [Citation.] In determining whether probable
cause to make an arrest existed, ‘we examine the events leading up to the arrest, and then
decide “whether these historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to” probable cause. . . .’ ” (People v. Turner (2017) 13
Cal.App.5th 397, 404–405.) To support a determination of probable cause, the
information relied upon by the arresting officer must be “ ‘reasonably trustworthy’ ”
details about the suspects in the surveillance videos, such as that they were “two African-
American males, one taller and thinner, and the other shorter and heavier.” The
prosecutor objected, saying “asked and answered as to these specific videos.” The trial
court sustained the objection, commenting “It is. Let’s move things something along. If
there’s nothing new to add here or if there’s some area or cross-examination that’s going
to be helpful to me. But it doesn’t help me to hear the same testimony over and over
again.” Later, the court stated, “I think I’ve heard enough on re-cross from this witness,”
and Farr’s counsel responded, “That’s fine.” Farr has not shown error. “The control of
cross-examination is not only within the discretion of the trial court, but, in the exercise
of that discretion, the court may confine cross-examination within reasonable limits and
may curtail cross-examination which relates to matters already covered or which are
irrelevant.” (People v. Beach (1983) 147 Cal.App.3d 612, 628.) The court told counsel
she could explore any new areas and only indicated a desire not to hear the same
testimony “over and over.” Counsel’s comment (“[t]hat’s fine”) in acquiescing to ending
cross-examination indicates she had nothing left of significance to ask Maguire. The
court did not abuse its discretion. (See People v. Ayala (2000) 23 Cal.4th 225, 301 [“the
trial court retains wide latitude in restricting cross-examination that is repetitive,
prejudicial, confusing of the issues, or of marginal relevance.”].)
14
(Hunter v. Bryant (1991) 502 U.S. 224, 228) or bear “indicia of reliability” (Illinois v.
Gates (1983) 462 U.S. 213, 233).
As explained previously in the context of the authentication analysis (Part I.C.,
ante), Sergeant Maguire’s testimony established the videos were a trustworthy basis upon
which to formulate probable cause for arrest. Although his testimony was not detailed,
the videos as described had sufficient indicia of reliability and there is little reason to
doubt the videos depicted the robberies under investigation. We need not repeat the
analysis here.
Appellants also argue Sergeant Maguire could not make a sufficiently reliable
identification of them based on his viewings of the surveillance videos. They rely on
People v. Walker (2012) 210 Cal.App.4th 1372, in which the court of appeal held that a
deputy’s opinion that the defendant, detained at a public transit station, resembled a
suspect was not “objectively reasonable.” (Id. at p. 1387.)11 Walker is distinguishable.
There, the only similarities were in the race and age of the defendant and the suspect,
because the photographs of the suspect relied upon by the deputy were “of poor quality
and offer little objective support for [the deputy’s] testimony.” (Id. at p. 1386.) In the
present case, we agree with the trial court that, comparing the surveillance stills to the
photographs taken the day of the arrest, exhibits one and two are reasonably recognizable
as Alexander and exhibits nine and ten are reasonably recognizable as Farr. Although the
quality of the surveillance video stills is not so good as to leave no doubt, we agree with
the trial court that it is reasonable to infer that Maguire’s ability to recognize appellants
was enhanced by his multiple viewings of the videos. Also, the circumstances that
Maguire encountered appellants together and that Alexander was wearing the same jacket
and shoes he wore in some of the videos substantially enhanced the probable accuracy of
the identification. Considered as a totality, the information known to Maguire was
11
Appellant Alexander’s citations to cases regarding testimony at trial identifying a
person in a photograph or video as the defendant are inapposite to the probable cause
issue in this case. (People v. Larkins (2011) 199 Cal.App.4th 1059, 1065–1066; People
v. Mixon (1982) 129 Cal.App.3d 118, 127.)
15
sufficient; certainty in the identification was not required to support a determination of
probable cause. (People v. Turner, supra, 13 Cal.App.5th at pp. 404–405.)
Appellants also contend the trial court, in upholding the warrantless arrest, could
not rely on Sergeant Maguire’s testimony about the Sweet Chinito robbery broadcast.
They rely on the “Harvey-Madden rule,”12 pursuant to which, when “ ‘ “officers in the
field . . . make arrests on the basis of information furnished to them by other officers,” ’ ”
then “ ‘ “the People must prove that the source of the information is something other than
the imagination of an officer who does not become a witness.” ’ ” (People v. Collins,
supra, 59 Cal.App.4th at p. 993; see also People v. Brown (2015) 61 Cal.4th 968, 983
(Brown).) We need not address that claim because, like the trial court, we do not rely on
the dispatch in finding probable cause for the warrantless arrest. As we have explained,
Maguire had probable cause to arrest appellants because he recognized them from the
surveillance videos; his testimony about the Sweet Chinito robbery dispatch merely
explained why he went to the area of Market and 7th Street the day of the arrest.
Because the surveillance videos viewed by Sergeant Maguire bore indicia of
reliability and because those videos provided a sufficient basis for him to recognize
appellants, the warrantless arrest of appellants was objectively reasonable under the
Fourth Amendment.13
II. The Trial Court Did Not Err in Its Conduct Credits Calculation
12
People v. Harvey (1958) 156 Cal.App.2d 516 and People v. Madden (1970) 2 Cal.3d
1017.
13
The result in this case is consistent with the underlying objectives of the probable cause
standards. As explained in Brinegar v. United States, supra, 338 U.S. at page 176, the
standards “seek to safeguard citizens from rash and unreasonable interferences with
privacy and from unfounded charges of crime. They also seek to give fair leeway for
enforcing the law in the community’s protection. Because many situations which
confront officers in the course of executing their duties are more or less ambiguous, room
must be allowed for some mistakes on their part. But the mistakes must be those of
reasonable [people], acting on facts leading sensibly to their conclusions of probability.
The rule of probable cause is a practical, nontechnical conception affording the best
compromise that has been found for accommodating these often opposing interests.
Requiring more would unduly hamper law enforcement. To allow less would be to leave
law-abiding citizens at the mercy of the officers’ whim or caprice.”
16
Section 2933.1, subdivision (a) provides, “Notwithstanding any other law, any
person who is convicted of a felony offense listed in subdivision (c) of Section 667.5
shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.”
Section 2933.1, subdivision (c) provides, “Notwithstanding Section 4019 or any other
provision of law, the maximum credit that may be earned against a period of confinement
in, or commitment to, a county jail, . . . following arrest and prior to placement in the
custody of the Director of Corrections, shall not exceed 15 percent of the actual period of
confinement for any person specified in subdivision (a).” The limitation in section
2933.1, subdivision (c) applied to the credits calculation for the time appellants were in
jail custody, because section 667.5, subdivision (c)(9) defines “[a]ny robbery” as a
“ ‘violent felony.’ ” (See also People v. Ramos (1996) 50 Cal.App.4th 810, 815–820
(Ramos).)
For the 1,741 days served in jail before sentencing, appellant Alexander received
conduct credit of 261 days, which is 15 percent of the actual period of confinement.
(§ 2933.1, subd. (c). He contends he should have received conduct credit of 307 days,
which would result in a 15 percent reduction of the sentence imposed by the trial court.14
The Ramos court rejected a similar claim. There, the court construed section 2933.1,
subdivision (c), to cap conduct credits at 15 percent of the days in confinement, stating
the “provision plainly looks to the number of days an unsentenced defendant actually
spends in local custody rather than to some hypothetical term of confinement.” (Ramos,
supra, 50 Cal.App.4th at p. 819.) The court was aware of the disparity highlighted by
appellants in the present case between jail and prison conduct credit awards, because the
defendant there argued, “the method [the court] used to calculate presentence conduct
credits violates equal protection principles in that it causes a person such as Ramos, who
is confined in the county jail prior to sentencing, to earn fewer conduct credits than a
person who receives the same sentence but serves the entire term in prison.” (Id. at p.
817.) As Ramos explained, “the disparity arises because the conduct credits one earns in
14
Appellant Farr, who received the same credits as Alexander, joins in the claim.
17
prison are based on the total term of imprisonment whereas, under the method employed
here, credits earned prior to sentencing are based on the actual period of confinement.”
(Id. at p. 818.) Ramos rejected the equal protection claim, reasoning that “a violent felon
confined in a local detention facility prior to sentencing is not similarly situated for equal
protection purposes to one serving a term in state prison and enrolled in a qualifying
work program.” (Id. at p. 824.)
Appellant Alexander contends the Ramos court erred, and he discusses in great
detail various aspects of the legislative history that he argues show “subdivision (c) of
section 2933.1 was intended to combine with subdivision (a) to limit the conduct credit
on the entire prison term for a violent felony to 15 percent regardless of the amount of
time the defendant happened to serve in county jail before the sentence. It was not
intended to create a limit on the conduct credit for the time served in county jail that was
even harsher than that for the time served in prison.”
We believe the evidence of legislative intent highlighted by appellants is
ambiguous as to the interpretation of section 2933.1, subdivision (c). In any event, we
need not consider the legislative history because we agree with the Ramos court that the
statute unambiguously requires courts to look to “the number of days an unsentenced
defendant actually spends in local custody.” (Ramos, supra, 50 Cal.App.4th at p. 819.)15
Appellants have not proffered a reasonable alternate interpretation of the phrase “the
actual period of confinement” (§ 2933.1, subd. (c)) and we are not at liberty to substitute
our policy judgment for the plain language of the statute. (Sierra Club v. Superior Court
(2013) 57 Cal.4th 157, 165–166 [“ ‘If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in absurd consequences the
Legislature did not intend. If the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the statute’s purpose, legislative
history, and public policy.’ ”].) Neither have appellants shown the plain language
interpretation of 2933.1, subdivision (c) leads to an absurd result. As explained in
15
Because we do not rely on the legislative history, we deny appellant Alexander’s
January 23, 2018 request for judicial notice of that history.
18
Ramos, persons confined in jail before sentencing and prison inmates are not identically
situated (Ramos, at pp. 822–824), and we cannot say it is absurd to “calculate a violent
felon’s presentence conduct credits based on a slightly less generous formula than is used
to determine his or her prison conduct credits.” (Id. at p. 820.)
Appellants have not shown the trial court erred in calculating conduct credits for
time they spent in jail custody. Of course, the Legislature is at liberty to amend section
2933.1, subdivision (c) if the language it enacted fails to effectuate the intended policy.
III. We Remand for Exercise of Trial Court’s Newly-Granted Sentencing Discretion
Finally, appellant Alexander contends this matter must be remanded for
resentencing so the trial court may exercise its newly-granted discretion to dismiss or
strike the five-year consecutive term that was imposed based on his prior serious felony
conviction for attempted robbery. (§ 667, subd. (a).) That discretion was granted in
2018’s Senate Bill 1393 (SB 1393); the Legislature granted similar discretion with
respect to firearm enhancements in 2017’s Senate Bill 620 (SB 620). Recent decisions in
this District have disagreed whether appellants who pled guilty pursuant to plea
agreements with agreed upon sentences are entitled to resentencing to permit trial courts
an opportunity to exercise the discretion granted under those enactments. (Compare
People v. Galindo (2019) 35 Cal.App.5th 658 [Division One opinion rejecting claim
under SB 1393 and dismissing appeal], People v. Fox (2019) 34 Cal.App.5th 1124 (Fox)
[Division One majority rejecting claim under SB 620 and dismissing appeal], and People
v. Stamps (2019) 34 Cal.App.5th 117 (Stamps), review granted June 12, 2019, S255843
[Division Four decision remanding for exercise of trial court’s discretion under SB
1393].) We conclude appellant Alexander is entitled to a remand for resentencing under
SB 1393.16
16
Appellant Alexander was not required to obtain a certificate of probable cause to assert
this claim. First and most clearly, because providing appellant the relief requested would
not invalidate the plea, the appeal is not “in substance . . . an attack on the validity of the
plea.” (People v. Buttram (2003) 30 Cal.4th 773, 782; see Stamps, supra, 34 Cal.App.5th
at pp. 121–122, review granted; People v. Hurlic (2018) 25 Cal.App.5th 50, 54–59
(Hurlic).) Second, we question whether the appeal would require a certificate of
19
“On September 30, 2018, the Governor signed [SB 1393] which, effective January
1, 2019, amend[ed] sections 667[ subdivision (a)] and 1385[ subdivision (b)] to allow a
court to exercise its discretion to strike or dismiss a prior serious felony conviction for
sentencing purposes. (Stats. 2018, ch. 1013, §§ 1–2.)” (People v. Garcia (2018) 28
Cal.App.5th 961, 971.) Under the previous version of the statutes, a trial court was
“required to impose a five-year consecutive term for ‘any person convicted of a serious
felony who previously has been convicted of a serious felony’ (§ 667[, subd. (a)]), and
the court ha[d] no discretion ‘to strike any prior conviction of a serious felony for
purposes of enhancement of a sentence under Section 667.’ ” (Garcia, at p. 971.) Garcia
held SB 1393 “applies retroactively to all cases or judgments of conviction in which a
five-year term was imposed at sentencing, based on a prior serious felony conviction,
provided the judgment of conviction [was] not final when SB 1393 [became] effective on
January 1, 2019.” (Garcia, at pp. 971–972.)
Respondent agrees SB 1393 is retroactive, but it argues remand for resentencing
would be futile because the trial court “lacks any authority to later unilaterally alter any
component of the plea” bargain entered by the parties and approved by the court.17 It
relies on the proposition that “a negotiated plea agreement is in the nature of a contract,”
probable cause even if appellant Alexander is not entitled to the relief requested; a
conclusion that appellant’s statutory interpretation is incorrect does not transform his
appeal into an attack on the validity of the plea. (But see Fox, supra, 34 Cal.App.5th
1124, 1139.) Finally, we agree with the dissent in Fox that “[A] plea agreement is
deemed to incorporate changes in the law such as [SB 1393] that are intended to apply to
the parties. [Appellant Alexander’s] appeal, which seeks resentencing to allow the trial
court to exercise its discretion consistent with the new legislation, is not an attack on the
validity of the plea itself but rather an effort to raise issues reserved by the plea
agreement, and as to which [appellant] did not waive his right to appeal. [Citation.] No
certificate of probable cause was required under the circumstances.” (Fox, at p. 1144
(dis. opn. of Sanchez, J.).)
17
We reject respondent’s separate contention that remand is unnecessary because “the
record shows that the trial court clearly indicated when it originally sentenced the
defendant that it would not in any event have stricken” (People v. McDaniels (2018) 22
Cal.App.5th 420, 425) the prior serious felony conviction for sentencing purposes.
Respondent points to nothing in the record that “reveals a clear indication of how the
court would have exercised its discretion.” (Id. at p. 426.)
20
and “when the trial court accepts it, the agreement is binding on the parties and the
court.” (People v. Martin (2010) 51 Cal.4th 75, 80.)
That argument was rejected by the Second District in analogous circumstances in
Hurlic, supra, 25 Cal.App.5th 50. (See also Stamps, supra, 34 Cal.App.5th at p. 121,
review granted [following Hurlic in SB 1393 context].) Hurlic involved 2017’s SB 620,
which granted trial courts discretion to strike section 12022.53 firearm enhancements.
(Hurlic, at p. 54.) That bill, like SB 1393, was deemed retroactive, and Hurlic concluded
remand was necessary to allow the trial court to exercise its newly granted discretion,
even though the sentence below was based on an agreed-upon sentence. (Hurlic, at pp.
56, 57–59.) Hurlic acknowledged the contractual nature of plea bargains, but observed
that, “[u]nless a plea agreement contains a term requiring the parties to apply only the law
in existence at the time the agreement is made, . . . ‘the general rule in California is that
the plea agreement will be “ ‘deemed to incorporate and contemplate not only the
existing law but the reserve power of the state to amend the law or enact additional laws
for the public good and in pursuance of public policy.’ ” ’ ” (Id. at p. 57, quoting Doe v.
Harris (2013) 57 Cal.4th 64, 66.) Because the defendant’s plea bargain did not contain
language to the contrary, it was deemed to incorporate SB 620 and “thus give defendant
the benefit of its provisions without calling into question the validity of the plea.”
(Hurlic, at p. 57.) If on remand the trial court were to strike the 20-year firearm
enhancement at issue in that case, “resentencing under [SB] 620 still [would] not
‘eviscerate[ ] . . . the plea bargain’ . . . , and thus, the People may not seek to set aside the
plea.” (Hurlic, at p. 57.)
In Stamps, supra, 34 Cal.App.5th 117, Division Four of this District followed
Hurlic in the context of SB 1393. Citing Hurlic and the California Supreme Court
decisions underlying the decision, Stamps rejected the Attorney General’s argument “that
retroactive application of new law in this case would deprive the prosecution of the
benefit of its plea bargain.” (Stamps, at p. 122, review granted; see also Doe v. Harris,
supra, 57 Cal.4th at pp. 73–74 [“It follows, also as a general rule, that requiring the
parties’ compliance with changes in the law made retroactive to them does not violate the
21
terms of the plea agreement, nor does the failure of a plea agreement to reference the
possibility the law might change translate into an implied promise the defendant will be
unaffected by a change in the statutory consequences attending his or her conviction. To
that extent, then, the terms of the plea agreement can be affected by changes in the
law.”].) Stamps declined to follow the Second District’s decision in People v. Kelly
(2019) 32 Cal.App.5th 1013, review granted June 12, 2019, S255145, which concluded
retroactive application of SB 1393 to a stipulated sentence would be a “ ‘bounty in excess
of that to which [the defendant] is entitled.’ ” (Kelly, at p. 1018, review granted.) Stamps
observed that the Kelly decision “failed to consider the reasoning on which Hurlic is
based, and it failed to cite or consider” the precedents underlying Hurlic. (Stamps, at p.
124, review granted.) We agree with the reasoning in Hurlic and Stamps.
Very recently, in Fox, supra, 34 Cal.App.5th 1124, the majority of a panel in
Division One of this District declined to follow Hurlic or Stamps in the SB 620 context.
The majority concluded the Legislature did not “intend[] for a trial court to be able to
exercise sentencing discretion under [SB] 620 even when a defendant agrees to serve a
specific term for a firearm enhancement and does not seek to withdraw the plea.” (Fox,
at p. 1137.) Although the decision’s analysis is thoughtful, we find more persuasive the
dissenting justice’s observation that SB 620 “requires only that the trial court exercise its
discretion to decide whether to strike a firearm enhancement, in full view of the
circumstances that gave rise to the plea agreement and in accordance with the equities of
the situation and the interests of justice.” (Fox, at p. 1140 (dis. opn. of Sanchez, J.).) The
Fox dissent also observed that, in enacting SB 620, “the Legislature was grappling with
the large-scale impacts of mandatory firearm enhancements on lengthy prison sentences,
prison crowding, and incarceration costs.” (Fox, at pp. 1148–1149 (dis. opn. of
Sanchez).) SB 1393 was enacted for similar reasons. (See, e.g., Sen. Comm. on Pub.
Saf. report on SB 1393, April, 3, 2018 [bill author’s statement that lack of discretion “has
resulted in mandatory additional terms for thousands of individuals incarcerated
throughout California’s prisons. This rigid and arbitrary system has meted out
punishments that are disproportionate to the offense, which does not serve the interests of
22
justice, public safety, or communities.”].) In the event a trial court on remand were to
conclude it is in the interests of justice to strike an enhancement included in a stipulated
sentence plea, we believe it would be consistent with the Legislature’s intent for the court
to do so without invalidating the plea.
Respondent does not claim appellant Alexander’s plea bargain “contain[s] a term
incorporating only the law in existence at the time of execution.” (Hurlic, supra, 25
Cal.App.5th at p. 57.) Accordingly, under Stamps and by analogy to Hurlic and the
California Supreme Court decisions relied upon therein, appellant Alexander’s plea
bargain is deemed to incorporate SB 1393 and remand is required to give the trial court
an opportunity to exercise its newly granted discretion to strike Alexander’s prior serious
felony conviction for sentencing purposes. “In exercising its discretion, the trial court is
not precluded from considering whether doing so would be incompatible with the
agreement on which defendant’s plea was based. If the trial court strikes the
enhancement, it shall resentence defendant [Alexander]. In selecting an appropriate
sentence, the court retains its full sentencing discretion except that it may not impose a
term in excess of the negotiated [14] years without providing defendant [Alexander] the
opportunity to withdraw his plea. [Citation.] If the trial court does not strike the
enhancement, it shall reinstate the sentence.” (Stamps, supra, 34 Cal.App.5th at p. 124,
review granted.) If the court decides to resentence Alexander without the five-year
enhancement under section 667, subdivision (a), respondent may not seek to set aside the
plea. (Hurlic, at p. 57.)
DISPOSITION
The trial court’s judgment is affirmed as to appellant Farr. As to appellant
Alexander, the case is remanded for the trial court to consider whether to strike the five-
year enhancement imposed under section 667, subdivision (a)(1). If the trial court
decides not to strike the enhancement, it is directed to correct the abstract of judgment to
reflect that the enhancement is pursuant to section 667, subdivision (a)(1), rather than
section 667.5, subdivision (a). The clerk of the superior court is ordered to forward a
23
certified copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation. The judgment as to appellant Alexander is affirmed in all other respects.
24
SIMONS, J.
I concur.
JONES, P.J.
(A151809, A152247)
25
NEEDHAM, J., Concurring and Dissenting
I concur with the majority opinion, except to the extent it remands the matter for
Alexander to be resentenced pursuant to Senate Bill 1393 (SB 1393). (Sen. Bill No. 1393
(2017–2018 Reg. Sess.) § 667.) That issue is not properly before us, because Alexander
did not obtain a certificate of probable cause.
It is fundamental that an appellant who challenges the validity of his or her plea
must first obtain a certificate of probable cause from the trial court. (People v. Panizzon
(1996) 13 Cal.4th 68, 76; Pen. Code, § 1237.5.) Where the appellant seeks to change a
sentence that the parties had agreed would be imposed as part of the plea bargain, the
appellant is in substance challenging the plea’s validity and a certificate of probable
cause is required. (E.g., Panizzon, supra, 13 Cal.4th at p. 78; People v. Cuevas (2008) 44
Cal.4th 374, 381–382.)
Here, Alexander’s plea was part of an agreement by which the court would
impose, and did impose, a specific sentence of 14 years, including five years for his prior
conviction of attempted robbery (Pen. Code, § 667, subd. (a)(1)). ~(CT 421-422, 439)~
Alexander now wants us to remand the case so the trial court can strike or dismiss his
prior felony conviction pursuant to SB 1393 and give him a sentence less than that to
which he stipulated in his plea agreement. (See Pen. Code, § 667, subd. (a); § 1385,
subd. (b).) Alexander is plainly attacking the validity of his plea, and a certificate of
probable cause is necessary.
The majority states in a footnote that Alexander was not required to obtain a
certificate of probable cause, theorizing that his request for relief does not really attack
the plea’s validity. (Maj. opn. ante, at p. 20, fn. 16.) The majority cites People v.
Buttram (2003) 30 Cal.4th 773, 782 (Buttram), but Buttram affirms the principle that a
certificate is required where, as here, the appellant attacks a specific sentence to which
the parties agreed. (Id. at pp. 781–782, 789.) While Buttram further concluded that a
certificate of probable cause was not needed to challenge the court’s exercise of
1
discretion in selecting a sentence within an agreed maximum, that is not at issue here.
(Id. at pp. 785–789.)
The majority also cites People v. Stamps (2019) 34 Cal.App.5th 117 (Stamps),
involving SB 1393, and People v. Hurlic (2018) 25 Cal.App.5th 50, 54–59 (Hurlic), a
case involving Senate Bill 620 (SB 620) on which Stamps heavily relied. Both Stamps
and Hurlic acknowledged that a certificate of probable cause is required when an
appellant challenges a specific negotiated sentence, but nonetheless concluded that this
mandate can be ignored when the challenge is based on a retroactive change in the law.
(Stamps, at p. 121; Hurlic, at pp. 55-57.)
The retroactivity analysis of Stamps and Hurlic does not persuade me. It implies
that, even though a certificate of probable cause is mandated for attacks on plea bargains
reached after the effective date of SB 1393 (or SB 620), no certificate would be needed
for attacks against plea bargains reached before the law was even in existence. This
would be a curious result, which Stamps and Hurlic do not adequately explain.
In my view, Stamps and Hurlic overstate the consequence of retroactivity.
Although a new statute may apply retroactively to cases not yet final, that does not mean
that every case not yet final falls within the scope of the new statute. Here, SB 1393
applies retroactively, but there is no indication that it was intended to govern cases in
which, as here, the defendant had agreed to a conditional plea that mandated a specific
sentence without judicial discretion to change it. (See People v. Segura (2008) 44 Cal.4th
921, 923 [trial court may not change the sentence stipulated in a conditional plea without
the consent of both parties].) Moreover, even if a law applies retroactively, it does not
follow that a person using that law to challenge a stipulated sentence is immune from
having to obtain a certificate of probable cause.
Stamps’s and Hurlic’s primary justification for their retroactivity analysis borrows
from the idea that new laws are sometimes incorporated into old plea agreements.
(Stamps, supra, 34 Cal.App.5th at p. 121; Hurlic, supra, 25 Cal.App.5th at p. 57.) As the
2
argument goes, unless a plea agreement explicitly requires the parties to apply only the
law in existence when the agreement is made, “ ‘the general rule in California is that the
plea agreement will be “ ‘deemed to incorporate and contemplate not only the existing
law but the reserve power of the state to amend the law or enact additional laws for the
public good and in pursuance of public policy.’ ” ’ ” (Hurlic, supra, 25 Cal.App.5th at p.
57, quoting Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe).) Relying on Doe and Harris v.
Superior Court (2016) 1 Cal.5th 984 (Harris), Hurlic concluded that the subject plea
agreement was “ ‘deemed to incorporate’ the subsequent enactment of [SB 620], and thus
give defendant the benefit of its provisions without calling into question the validity of
the plea.” (Hurlic, supra, 25 Cal.App.5th at p. 57.)
However, the cases on which Hurlic relied are inapposite. Besides the fact that
neither of them addressed the certificate of probable cause requirement, the plea
agreements in those cases were deemed to incorporate substantive changes in the law,
which the Legislature explicitly made applicable to the defendants. (Doe, supra, 57
Cal.4th at p. 66; Harris, supra, 1 Cal.5th at p. 991.) Here, SB 1393 merely allows a court
to exercise its discretion to strike or dismiss a prior serious felony conviction for
sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) SB 1393 does
not require all prior serious felony convictions to be stricken for sentencing; nor does it
expressly make its provisions applicable to persons convicted pursuant to a plea bargain
that was conditioned on the court entering a specified sentence, and only that sentence.
This distinction makes a difference, as recently explained in two cases from this
appellate district that rejected Hurlic’s and Stamps’s analysis. (People v. Galindo (2019)
35 Cal.App.5th 658 (Galindo); People v. Fox (2019) 34 Cal.App.5th 1124 (Fox).) As
Fox concluded, “the general rule that plea agreements incorporate subsequent changes in
the law pertains only to changes that the Legislature or electorate ‘ “intended to apply to”
’ the parties to plea agreements,” and there is no indication that SB 620 was intended to
apply to plea bargains in which the defendant and the prosecution stipulated that a
3
specific sentence would be entered in exchange for the dismissal of other counts, rights,
or remedies. (Fox, at pp. 1135–1136.) Galindo reached the same conclusion as to SB
1393, and so do I. (Galindo, at pp. 671–672.)
As another reason for eschewing the certificate of probable cause requirement,
Hurlic asserted that the intent behind the requirement is to encourage plea agreements
and weed out frivolous and vexatious appeals, and a defendant’s incentive to plead is
reduced if the defendant must seek a certificate of probable cause to take advantage of a
new law. (Hurlic, supra, 25 Cal.App.5th at pp. 57–58.) I find it difficult to believe that a
defendant, content with serving a specified number of years to avoid trial and the
potential for additional convictions and a longer sentence, would shun the deal merely
because, if in the future some change in the law would shave even more years off his
sentence, he would have to file a piece of paper stating why the new law applies (which
he would have to establish eventually anyway). (See Galindo, supra, 35 Cal.App.5th at
p. 672.) And if, as Galindo concludes, SB 1393 was not intended to apply to convictions
obtained by conditional plea (id. at p. 671), the gatekeeping function of Penal Code
section 1237.5 can only be fulfilled if the certificate of probable cause requirement is
imposed.
Lastly, Hurlic asserted that the more specific and newer legislation (in this case,
SB 1393) should prevail over the more general and older Penal Code section 1237.5.
(Hurlic, supra, 25 Cal.App.5th at p. 58.) However, those rules of construction apply only
if there is no other way to harmonize conflicting statutes. Here, if there is any conflict
between the certificate of probable cause requirement and the retroactive application of
SB 1393, the conflict is readily harmonized: SB 1393 applies retroactively, but not to
convictions by plea bargains in which a condition of the plea was the specific sentence
the defendant received. After all, it is one thing to allow the court to exercise its
discretion when the parties had agreed that the sentence would be left to the court’s
discretion; it is quite another to give the court discretion to change the sentence when the
4
parties had agreed that only one sentence was acceptable. (See Buttram, supra, 30
Cal.4th at pp. 786, 789 [“when the claim on appeal is merely that the trial court abused
the discretion the parties intended it to exercise” in sentencing, there is no attack on the
validity of the plea; but if it challenges a sentence that the parties agreed must be entered
as a condition of the plea, appellant is attacking the validity of the plea], italics added.)
Hurlic provides no basis for the majority’s ruling in this case.
The majority’s footnote in this case also expresses its agreement with the dissent
in Fox, to the effect that Alexander is merely trying to “ ‘raise issues reserved by the plea
agreement.’ ” (Maj. opn. ante, at p. 20, fn. 16, quoting Fox, supra, at p. 1144 (Sanchez,
J., dissenting).) But that proposition is incorrect, since Alexander’s conditional plea
agreement did not reserve discretion to the trial court to change the length of his sentence.
Indeed, it is the whole point of a conditional plea, as well as the expectation of the parties
who negotiate them, that the court would not have such discretion. In my view, before
we jump to the conclusion that the Legislature intended to flip the long-standing law and
its real-world application on its head, wisdom dictates that we require something more
from the legislative language than silence. I therefore agree not with the dissent in Fox,
but with the views of the justices who formed the majority in Fox, as echoed by the
unanimous panel in Galindo.18
Alexander’s insistence that the court should be allowed to change his sentence
under SB 1393 attacks the validity of his plea, and his argument cannot be heard without
a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
18
The majority’s footnote in this case also questions whether Alexander’s appeal
would require a certificate of probable cause even if he is not entitled to a remand for
resentencing, because “a conclusion that appellant’s statutory interpretation is incorrect
does not transform his appeal into an attack on the validity of the plea.” (Maj. opn. ante,
at p. 20, fn. 16.) My point, however, is not that Alexander needs a certificate of probable
cause because he is wrong in his interpretation of the statute, but because his request for
relief attacks the validity of his plea.
5
NEEDHAM, J.
(A151809, A152247)
6
Superior Court of the City and County of San Francisco, Nos. SCN220303-01 &
SCN220303-02, Hon. Jeffrey S. Ross, Judge.
Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and
Appellant Bryan Alexander.
Gail E. Chesney, under appointment by the Court of Appeal, for Defendant and Appellant
Ray A. Farr.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit and Lisa Ashley
Ott, Deputy Attorneys General, for Plaintiff and Respondent.
7