People v. Stamps

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM STAMPS,

Defendant and Appellant.

S255843

First Appellate District, Division Four

A154091

Alameda County Superior Court

17CR010629

June 25, 2020

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,

Kruger, and Groban concurred.

PEOPLE v. STAMPS

S255843

Opinion of the Court by Corrigan, J.

Defendant entered into a plea agreement for a specified

term that included a prior serious felony enhancement (Pen.

Code, § 667, subd. (a)). While his appeal was pending, a new

law went into effect permitting the trial court to strike a serious

felony enhancement in furtherance of justice (Pen. Code, § 1385,

subd. (a)), which it was not previously authorized to do. We hold

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, and that the new law applies

because his case is not yet final on appeal. Although we agree

with defendant that the matter must be remanded to the trial

court, we reject his contention that the court is authorized to

exercise its discretion to strike the enhancement but otherwise

maintain the plea bargain. Defendant on remand may seek the

court’s exercise of discretion, but if the court chooses to strike

the enhancement, its decision will have consequences to the plea

agreement. (See discussion post, at pp. 21-27.)

I. BACKGROUND

Defendant William Stamps was charged with three counts

of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). The

complaint also alleged two prior first degree burglary

convictions as serious felonies under the “Three Strikes” law and

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the serious felony enhancement provision.1 Three state prison

prior convictions were also alleged. (Pen. Code, § 667.5, subd.

(b).) Had defendant been convicted of all counts and

enhancements, he would have been subject to the 25-years-to-

life provisions of the Three Strikes law (Pen. Code, § 1170.12,

subd. (c)(2)) along with any applicable fixed-term

enhancements.

In November 2017, pursuant to negotiation, defendant

pled to one first degree burglary and admitted one serious felony

conviction in exchange for a nine-year prison sentence, based on

the low term for burglary (two years), doubled under the Three

Strikes law (Pen. Code, § 1170.12, subd. (c)(1)), plus five years

for the serious felony enhancement. All remaining counts and

allegations were dismissed on motion of the district attorney as

part of the plea agreement. Defendant was sentenced in

January 2018, subsequently filed a notice of appeal, and sought

a certificate of probable cause (Pen. Code, § 1237.5; Cal. Rules

of Court, rule 8.304(b)), which the trial court denied.

On September 30, 2018, the governor approved Senate Bill

No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) allowing a

trial court to dismiss a serious felony enhancement in

furtherance of justice.2 After the law was signed but before it

became effective on January 1, 2019, defendant filed an opening

brief in the Court of Appeal. He raised a single claim that, in

light of Senate Bill 1393, his case should be remanded to the

trial court to exercise its discretion whether to strike the serious

felony enhancement. The Attorney General countered that

1

(See Pen. Code, §§ 667, subd. (a)(1), (4), 1170.12, subds.

(b)(1), (c)(2), 1192.7, subd. (c)(18).)

2

(See Stats. 2018, ch. 1013, §§ 1 & 2.)

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defendant’s appeal was not cognizable because he failed to

obtain a certificate of probable cause. The Court of Appeal

concluded a certificate was not required and Senate Bill 1393

applied retroactively to defendant. It then remanded,

permitting the trial court to exercise its discretion whether to

strike the enhancement.3 (People v. Stamps, supra, 34

Cal.App.5th at pp. 120-124; see discussion post.) We agree on

the certificate question but modify the remand order.

II. DISCUSSION

A. A Certificate of Probable Cause Was Not Required

Generally, a defendant may appeal “from a final judgment

of conviction.” (Pen. Code, § 1237, subd. (a).) However, if the

judgment resulted from a guilty or no contest plea, Penal Code4

section 1237.5, subdivisions (a) and (b), provide that no appeal

may be taken unless “[t]he defendant has filed with the trial

court a written statement, executed under oath or penalty of

perjury showing reasonable constitutional, jurisdictional, or

other grounds going to the legality of the proceedings,” and the

court “has executed and filed a certificate of probable cause for

3

The Court of Appeal concluded: “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. 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 nine years without providing defendant the

opportunity to withdraw his plea. [Citation.] If the trial court

does not strike the enhancement, it shall reinstate the

sentence.” (People v. Stamps (2019) 34 Cal.App.5th 117, 124.)

4

Subsequent statutory references are to the Penal Code

unless noted.

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such appeal with the clerk of the court.” “[S]ection 1237.5

admits of this exception: The defendant may take an appeal

without a statement of certificate grounds or a certificate of

probable cause if he does so solely on noncertificate grounds,

which go to postplea matters not challenging his plea’s validity

and/or matters involving a search or seizure whose lawfulness

was contested pursuant to section 1538.5.” (People v. Mendez

(1999) 19 Cal.4th 1084, 1096; People v. Panizzon (1996) 13

Cal.4th 68, 74 (Panizzon); see Cal. Rules of Court, rule

8.304(b)(4).) A certificate of probable cause functions to

discourage frivolous appeals following a guilty or no contest

plea. It promotes judicial economy by screening out baseless

postplea appeals before time and money are spent on record

preparation, briefing and appellate review. (See Panizzon, at

pp. 75-76.)

“It has long been established that issues going to the

validity of a plea require” a certificate of probable cause.

(Panizzon, supra, 13 Cal.4th at p. 76.) “Even when a defendant

purports to challenge only the sentence imposed, a

certificate . . . is required if the challenge goes to an aspect of the

sentence to which the defendant agreed as an integral part of a

plea agreement.” (People v. Johnson (2009) 47 Cal.4th 668, 678

(Johnson).) “[T]he critical inquiry is whether a challenge to the

sentence is in substance a challenge to the validity of the plea,

thus rendering the appeal subject to the [certificate]

requirements of section 1237.5.” (Panizzon, at p. 76.)

We have stated in a different context that “a challenge to

a negotiated sentence imposed as part of a plea bargain is

properly viewed as a challenge to the validity of the plea itself.”

(Panizzon, supra, 13 Cal.4th at p. 79.) This characterization was

correct in its context, but it is not universally applicable.

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Panizzon’s claim that his sentence was cruel and unusual

attacked the validity of his plea because “the sentence defendant

received was part and parcel of the plea agreement he

negotiated with the People.” (Id. at p. 78.) In so concluding, we

rejected the defendant’s argument that “his claim of error, i.e.,

that the bargained sentence is unconstitutional when compared

to the sentences of his codefendants, is based on events that

occurred after the no contest plea was entered.” (Ibid.) The

circumstance that Panizzon’s codefendants were later sentenced

to lesser terms merely bolstered his essential claim that the

sentence agreed to in the plea bargain was constitutionally

defective at the time the agreement was made. As Panizzon

reasoned, “the essence of defendant’s claim is that his sentence

is disproportionate to his level of culpability [citation], a factor

that also was known at the time of the plea and waiver. Thus,

the real thrust of defendant’s claim concerns events predating

entry of the plea and waiver.” (Id. at p. 86.) Such an argument

attacks the plea itself.

Similarly, we held that a claim the trial court violated the

multiple punishment ban of section 654 constituted an attack on

the plea where the court imposed the maximum term agreed

upon by the parties: “[T]he specification of a maximum sentence

or lid in a plea agreement normally implies a mutual

understanding of the defendant and the prosecutor that the

specified maximum term is one that the trial court may lawfully

impose and also a mutual understanding that, absent the

agreement for the lid, the trial court might lawfully impose an

even longer term.” (People v. Shelton (2006) 37 Cal.4th 759, 768;

see also People v. Cuevas (2008) 44 Cal.4th 374, 379-384

(Cuevas).) Again, Shelton sought to attack the plea bargain as

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defective when it was made because it permitted a sentence

prohibited by statute.

These cases teach that when the parties reach an

agreement in the context of existing law, a claim that seeks to

avoid a term of the agreement, as made, is an attack on the plea

itself. They do not, however, address the nature of a challenge

based, not upon existing law, but on a subsequent change in the

law. Defendant’s appellate claim here relies on the 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.) “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” (id. 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; see discussion

post.)

Defendant argues that a certificate of probable cause was

not required because he is not challenging the validity of his

plea. Rather, he is seeking retroactive application of a

subsequently enacted ameliorative provision, which he contends

has been incorporated into his plea agreement. We agree

defendant was not required to obtain a certificate. His appellate

claim does not constitute an attack on the validity of his plea

because the claim does not challenge his plea as defective when

made. We separately discuss the retroactivity and remedy

questions post.

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As discussed, a claim that seeks to avoid a term of a plea

agreement can constitute an attack on the validity of the plea

itself, necessitating a certificate of probable cause. “Exempt

from this certificate requirement are postplea claims, including

sentencing issues, that do not challenge the validity of the plea.”

(Cuevas, supra, 44 Cal.4th at p. 379.) Whether an appeal

challenges the validity of the plea itself, requiring a certificate,

or seeks merely to correct alleged postplea error can be a

nuanced question. Defendants who lack a required certificate

may structure their appellate arguments to try and obviate the

need for one.

In People v. Ribero (1971) 4 Cal.3d 55 (Ribero), the

defendant sought to withdraw his plea, arguing he was misled

by counsel as to the sentence he would receive. He then

appealed from the denial of that motion. In Johnson, supra, 47

Cal.4th 668, the defendant claimed on appeal his counsel was

ineffective for not supporting his unsuccessful attempt to

withdraw a plea. Neither Ribero nor Johnson had obtained a

certificate of probable cause and asserted one was not necessary

because they were not attacking the validity of their plea but

seeking instead review of postplea error. Those arguments were

rejected based on the facts of the cases. In each case, the essence

of the defendants’ argument was that his initial plea was

invalid. As the Ribero court explained: “[T]he crucial issue is

what the defendant is challenging, not the time or manner in

which the challenge is made. . . . If a defendant challenges the

validity of his plea by way of a motion to withdraw the plea, he

cannot avoid the [certificate] requirements . . . by labelling the

denial of the motion as an error in a proceeding subsequent to

the plea.” (Ribero, at pp. 63-64.)

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In Ribero and Johnson, a certificate was required because

the defendants were arguing their pleas were defective when

made. Their subsequent motions to withdraw those pleas rested

on the argument that the plea itself was invalid. The timing of

their motions did not change the fact that the motions, the

denial of which they sought to appeal, challenged the underlying

integrity of the pleas themselves. Under Ribero and Johnson,

courts should look to the substance of a defendant’s claim and

not to whether it is labeled a postplea or sentencing issue. (See

Johnson, supra, 47 Cal.4th at p. 681; Ribero, supra, 4 Cal.3d at

p. 63.)

Several cases serve to clarify the rule by way of distinction.

They provide examples in which the appeal does not attack the

validity of the plea itself but is properly understood as an appeal

from a postplea decision.

In People v. French (2008) 43 Cal.4th 36 (French), the

defendant was charged with 12 counts of lewd act with a child

under 14 (§ 288, subd. (a)). If convicted on all counts, he faced a

maximum sentence of 180 years to life. He pled no contest to six

counts as part of a plea agreement, and six counts were

dismissed. The parties agreed that the maximum sentence

would be 18 years. At sentencing, the court imposed that term,

finding the aggravated term of eight years was called for in one

of the counts and imposing an additional, consecutive, one-third

of the midterm of two years for each of the remaining five counts.

The trial court selected the upper term for one count because it

found a circumstance in aggravation had been established.

(French, at pp. 41-43.)

At the time of French’s plea, the determination of whether

aggravating factors supported a sentence above the midterm

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was left to the discretion of the trial court. After entry of the

plea, United States Supreme Court cases held that a defendant

has a Sixth Amendment right to have a jury determine, beyond

a reasonable doubt, facts supporting an “exceptional sentence.”

(Blakely v. Washington (2004) 542 U.S. 296, 303; see United

States v. Booker (2005) 543 U.S. 220, 244; Ring v. Arizona (2002)

536 U.S. 584, 609; Apprendi v. New Jersey (2000) 530 U.S. 466,

481-484; French, supra, 43 Cal.4th at p. 48.) In Cunningham v.

California (2007) 549 U.S. 270, the high court concluded that,

under California’s determinate sentencing scheme (§ 1170), a

defendant has a Sixth Amendment right to have a jury, not a

judge, determine facts supporting an upper term sentence.

(Cunningham, at pp. 288-294.) French appealed the court’s

imposition of the upper term based on its finding of aggravated

circumstances. He did not, however, secure a section 1237.5

certificate. This court held that the certificate was not required.

The unanimous opinion reviewed holdings in Panizzon and

Shelton and contrasted them to the outcome in People v.

Buttram (2003) 30 Cal.4th 773 (Buttram). (French, at pp. 44-

46.)

Buttram was charged with felony possession of heroin and

methamphetamine for sale (Health & Saf. Code, §§ 11351,

11378), along with two prior strikes and serious felony

convictions. As charged, he faced a 25-year-to-life sentence. He

pled guilty in return for a promise that his maximum sentence

would not exceed six years. At sentencing, the defense argued

against a prison term and urged instead that Buttram should be

sent to a drug treatment program. The court weighed the

sentencing options on the record, dismissed one strike and

sentenced Buttram to two concurrent six-year terms. (Buttram,

supra, 30 Cal.4th at pp. 777-779.) He appealed, without a

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section 1237.5 certificate, arguing that the court abused its

discretion in imposing a prison term rather than requiring drug

treatment. The Court of Appeal dismissed the appeal,

concluding it was an attack on the validity of the plea, but the

Buttram majority reversed. It explained that the defendant was

not attacking the validity of the plea as entered but only the

court’s postplea exercise of its sentencing discretion. It noted

long-standing precedent that “where the terms of the plea

agreement leave issues open for resolution by litigation,

appellate claims arising within the scope of that litigation do not

attack the validity of the plea, and thus do not require a

certificate of probable cause.” (Buttram, at p. 783, citing People

v. Ward (1967) 66 Cal.2d 571, 574-576.)

We concluded in French that the defendant’s challenge

there was similar to Buttram’s. It did not assert that the plea

was invalid but, instead, that independent irregularities at his

sentencing hearing required reversal of that sentence.5 (French,

supra, 43 Cal.4th at p. 45.)

Like Buttram and French, Stamps does not seek to put

aside or withdraw his plea. He does not urge that his plea was

invalid when made. Instead, he seeks relief because the law

subsequently changed to his potential benefit. His appeal, then,

does not attack the plea itself and does not require a certificate

5

Nonsentencing cases, like People v. Vera (2004) 122

Cal.App.4th 970, also help clarify the distinction. Vera

concluded a challenge to the court’s denial of a postplea Marsden

(People v. Marsden (1970) 2 Cal.3d 118) motion did not require

a certificate: “We regard the issue of whether defendant

currently needed a new attorney [at sentencing] as a postplea

issue not essentially implicating the validity of the no contest

plea.” (Vera, at p. 978.)

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of probable cause. We turn now to the merits of his retroactivity

claim and the proper remedy.

B. Senate Bill 1393 Applies Retroactively

Defendant argues that Senate Bill 1393 applies

retroactively to his plea bargain and requires a remand to the

trial court to consider striking the serious felony enhancement.

“It is well settled that a new statute is presumed to operate

prospectively absent an express declaration of retrospectivity or

a clear indication that the electorate, or the Legislature,

intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d

282, 287; see People v. Sandoval (2007) 41 Cal.4th 825, 845.)

The Penal Code provides that “[n]o part of it is retroactive,

unless expressly so declared.” (§ 3.)

Defendant acknowledges that Senate Bill 1393 contained

no provision regarding retroactive application but relies on our

decision in In re Estrada (1965) 63 Cal.2d 740. Estrada

considered the retroactive application of a statutory amendment

that lessened punishment, identifying the issue as “one of trying

to ascertain the legislative intent—did the Legislature intend

the old or new statute to apply? Had the Legislature expressly

stated which statute should apply, its determination, either

way, would have been legal and constitutional.” (Id. at p. 744.)

Estrada concluded that, if no contrary indication exists, “When

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

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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.” (Id. at p. 745.) “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.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 881, quoting

People v. Conley (2016) 63 Cal.4th 646, 657.)

We agree with defendant that, under Estrada, Senate Bill

1393 applies to his case retroactively because his judgment is

not yet final. Eliminating the prior restriction on the court’s

ability to strike a serious felony enhancement in furtherance of

justice constitutes an ameliorative change within the meaning

of Estrada. (Cf. People v. Superior Court (Lara) (2018) 4 Cal.5th

299, 308-309.) The Attorney General does not argue otherwise.

C. The Proper Remedy

1. Defendant’s Proposed Remedy

Defendant contends the proper remedy is to remand to the

trial court to consider striking the serious felony enhancement

while otherwise maintaining the plea agreement intact. We

disagree. The Estrada rule only answers the question of

whether an amended statute should be applied retroactively. It

does not answer the question of how that statute should be

applied. Section 1385, subdivision (a) states in part that “[t]he

judge or magistrate may, either of his or her own motion or upon

the application of the prosecuting attorney, and in furtherance

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of justice, order an action to be dismissed.” Section 1385,

subdivision (b)(1) provides that if a court “has the authority

pursuant to subdivision (a) to strike or dismiss an enhancement,

the court may instead strike the additional punishment for that

enhancement in the furtherance of justice . . . .” As noted,

Senate Bill 1393 removed provisions that prohibited a trial

court from striking a serious felony enhancement in furtherance

of justice under section 1385.

If defendant stood convicted of a crime with an enhancing

prior as a result of trial or an open plea of guilty as charged, his

case could be remanded for the court to reconsider its sentence

in light of its newly conferred authority to strike the

enhancement. This case is procedurally different because both

parties entered a plea agreement for a specific prison term.

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.)

People v. Cunningham (1996) 49 Cal.App.4th 1044

addressed an analogous issue. There, the defendant claimed on

appeal that his case should be remanded to allow the court to

consider striking his prior strike conviction. People v. Superior

Court (Romero) (1996) 13 Cal.4th 497, which was decided after

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Cunningham’s plea, clarified that a court retained such

discretion under section 1385. (Romero, at pp. 529-530.)

Cunningham declined to permit a remand for a sentence in

contravention to the plea bargain: “Here, defendant stipulated

that he would be sentenced to the 32-month term imposed by

the court. Defendant cites no authority, nor have we found any,

allowing a trial court to breach the bargain by striking the prior

to impose less than the 32 months agreed upon. ‘While no

bargain or agreement can divest the court of the sentencing

discretion it inherently possesses [citation], a judge who has

accepted a plea bargain is bound to impose a sentence within

the limits of that bargain. [Citation.] “A plea agreement is, in

essence, a contract between the defendant and the prosecutor to

which the court consents to be bound.” [Citations.] Should the

court consider the plea bargain to be unacceptable, its remedy is

to reject it, not to violate it, directly or indirectly. [Citation.]

Once the court has accepted the terms of the negotiated plea,

“[it] lacks jurisdiction to alter the terms of a plea bargain so that

it becomes more favorable to a defendant unless, of course, the

parties agree.” ’ ” (Cunningham, at p. 1047.)

Even applying section 1385 as amended, long-standing

law limits the court’s unilateral authority to strike an

enhancement yet maintain other provisions of the plea bargain.

“Some potential for confusion appears in broad statements to

the effect that once a trial court has ‘accepted’ a plea bargain, it

too is ‘bound’ by it. . . . Taken out of context, they might suggest

that the court surrenders its sentencing discretion the moment

it accepts a negotiated plea. Such a view is of course

irreconcilable with the statute and cases . . . . The

statements . . . are best understood as only prohibiting the court

from unilaterally modifying the terms of the bargain without

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affording . . . an opportunity to the aggrieved party to rescind

the plea agreement and resume proceedings where they left off.”

(People v. Kim (2011) 193 Cal.App.4th 1355, 1361 (Kim).)

Thus, it is not enough for defendant to establish that the

amended section 1385 applies to him retroactively under

Estrada in order to receive the remedy he seeks. In order to

justify a remand for the court to consider striking his serious

felony enhancement while maintaining the remainder of his

bargain, defendant must establish not only that Senate Bill

1393 applies retroactively, but that, in enacting that provision,

the Legislature intended to overturn long-standing law that a

court cannot unilaterally modify an agreed-upon term by

striking portions of it under section 1385. We are not persuaded

that the Legislature intended this result.

The Legislative Counsel’s Digest explained that Senate

Bill 1393 “would delete the restriction prohibiting a judge from

striking a prior serious felony conviction in connection with

imposition of the 5-year enhancement described above and

would make conforming changes.” (Legis. Counsel’s Dig., Sen.

Bill No. 1393 (2017-2018 Reg. Sess.).) The author of the bill

explained it was necessary because “ ‘[n]early every sentence

enhancement in California can be dismissed at the time of

sentencing if the judge finds that doing so would serve the

interest of justice. However, under existing law people with

current and prior serious felony convictions receive a mandatory

five-year enhancement. . . . This 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 justice, public

safety, or communities.’ ” (Assem. Com. on Pub. Safety,

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Analysis of Sen. Bill No. 1393 (2017-2018 Reg. Sess.) as

amended May 9, 2018, pp. 1-2.) The author urged that

“ ‘[a]llowing judicial discretion is consistent with other sentence

enhancement laws and retains existing penalties for serious

crimes.’ ” (Id. at p. 2.) As defendant observes, the Assembly

Committee on Public Safety cited statistics showing that “as of

September 2016, 79.9% of prisoners . . . had some kind of

sentence enhancement; 25.5% had three or more.” (Id. at pp. 3-

4.) Another analysis suggested a prison cost savings of $15

million over five years if “100 defendants annually have the five-

year enhancement struck . . . .” (Assem. Com. on

Appropriations, Analysis of Sen. Bill No. 1393 (2017-2018 Reg.

Sess.) as amended May 9, 2018, p. 1.)

Defendant argues “[t]he legislative history therefore

demonstrates that the Legislature’s intent in enacting SB 1393

was to reduce prison overcrowding, save money, and achieve a

more just, individualized sentencing scheme.” The Legislature

may have intended to modify the sentencing scheme, but the

legislative history does not demonstrate any intent to overturn

existing law regarding a court’s lack of authority to unilaterally

modify a plea agreement. Indeed, none of the legislative history

materials mention plea agreements at all. What legislative

intent can be discerned runs counter to defendant’s position. As

described, Senate Bill 1393 was intended to bring a court’s

discretion to strike a five-year serious felony enhancement in

line with the court’s general discretion to strike other

enhancements. Thus, the Legislature gave a court the same

discretion to strike a serious felony enhancement that it retains

to strike any other sentence enhancing provision. Its action did

not operate to change well-settled law that a court lacks

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discretion to modify a plea agreement unless the parties agree

to the modification.

Defendant relies on Harris v. Superior Court, supra, 1

Cal.5th 984 (Harris). Harris pled to felony grand theft (§ 487,

subd. (c)) and admitted a prior robbery conviction in exchange

for a six-year prison term and dismissal of a robbery count.

(Harris, at pp. 987-988.) After passage of Proposition 47, which

“reduced certain nonviolent crimes, including the grand theft

from the person conviction in this case, from felonies to

misdemeanors” (Harris, at p. 988), defendant petitioned to have

his theft conviction resentenced as a misdemeanor. (See

§ 1170.18, subd. (a).) The People argued the reduction violated

the plea agreement and sought to withdraw from the bargain.

Harris rejected the claim: “Critical to this question is the intent

behind Proposition 47. As we explained in Doe v. Harris, supra,

57 Cal.4th at page 66, entering into a plea agreement does not

insulate the parties ‘from changes in the law that the Legislature

has intended to apply to them.’ (Italics added.) Here, of course,

it was not the Legislature, but the electorate, that enacted

Proposition 47. So the question is whether the electorate

intended the change to apply to the parties to this plea

agreement. We conclude it did.” (Harris, at p. 991.) Noting that

section 1170.18, subdivision (a) specifically applied to a person

“serving a sentence for a conviction, whether by trial or plea,”

Harris reasoned that “[b]y expressly mentioning convictions by

plea, Proposition 47 contemplated relief to all eligible

defendants.” (Harris, at p. 991.) “The resentencing process that

Proposition 47 established would often prove meaningless if the

prosecution could respond to a successful resentencing petition

by withdrawing from an underlying plea agreement and

reinstating the original charges filed against the petitioner.”

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(Id. at p. 992.) In such cases, “ ‘the financial and social benefits

of Proposition 47 would not be realized, and the voters’ intent

and expectations would be frustrated.’ ” (Ibid.)

Harris also found additional support from Doe, which

“stands for the proposition that ‘the Legislature [or here, the

electorate], for the public good and in furtherance of public

policy, and subject to the limitations imposed by the federal and

state Constitutions, has the authority to modify or invalidate

the terms of an agreement.’ [Citation.] The electorate exercised

that authority in enacting Proposition 47. It adopted a public

policy respecting the appropriate term of incarceration for

persons convicted of certain crimes, including grand theft from

the person. The policy applies retroactively to all persons who

meet the qualifying criteria and are serving a prison sentence

for one of those convictions, whether the conviction was by trial

or plea. The electorate may bind the People to a unilateral

change in a sentence without affording them the option to

rescind the plea agreement. The electorate did so when it

enacted Proposition 47.” (Harris, supra, 1 Cal.5th at p. 992.)

Harris distinguished People v. Collins (1978) 21 Cal.3d

208 (Collins). Pursuant to a plea bargain, Collins pled guilty to

a single count of oral copulation under former section 288a in

exchange for dismissal of 14 other felony counts. Prior to

sentencing, the Legislature repealed former section 288a,

decriminalizing “the act of oral copulation between consenting,

nonprisoner adults . . . .” (Collins, at p. 211.) Collins reasoned

the decriminalization of oral copulation applied retroactively

under Estrada because the conviction was not yet final, and the

defendant could not be sentenced for that offense. (Collins, at

pp. 212-213.) However, Collins concluded the prosecution was

entitled on remand to reinstate the dismissed counts because,

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“[w]hen a defendant gains total relief from his vulnerability to

sentence, the state is substantially deprived of the benefits for

which it agreed to enter the bargain.” (Id. at p. 215.) Collins

reasoned: “Defendant seeks to gain relief from the sentence

imposed but otherwise leave the plea bargain intact. This is

bounty in excess of that to which he is entitled. The intervening

act of the Legislature in decriminalizing the conduct for which

he was convicted justifies a reversal of defendant’s conviction

and a direction that his conduct may not support further

criminal proceedings on that subject; but it also destroys a

fundamental assumption underlying the plea bargain—that

defendant would be vulnerable to a term of imprisonment. The

state may therefore seek to reestablish defendant’s vulnerability

by reviving the counts dismissed.” (Ibid.)

Harris is distinguishable from the present case.

Proposition 47 reduced to misdemeanors certain theft and drug

offenses and created a mechanism to allow defendants to seek

relief under the new law, even though they had already been

sentenced. (See People v. DeHoyos (2018) 4 Cal.5th 594, 597-

599; § 1170.18.) The resentencing provision applied to those

“serving a sentence for a conviction, whether by trial or plea”

(§ 1170.18, subd. (a)) and drew “no express distinction between

persons serving final sentences and those serving nonfinal

sentences, instead entitling both categories of prisoners to

petition courts for recall of sentence.” (DeHoyos, at p. 603.) The

provision also allowed defendants who had already completed

their sentences to have their offenses designated as

misdemeanors. (§ 1170.18, subds. (f)-(h).) The electorate thus

evinced an intent that these offenses be treated as

misdemeanors no matter how or when a defendant suffered the

conviction. As Harris reasoned, to allow the prosecution, in

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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.)

Similar considerations do not apply here. Nothing in the

language and legislative history of Senate Bill 1393 suggests an

intent to modify section 1192.5’s mandate that “the court may

not proceed as to the plea other than as specified in the plea”

without the consent of the parties. As discussed, Senate Bill

1393’s amendment of section 1385 now allows a trial court to

strike a serious felony enhancement just as it may do with any

other enhancement. Unlike in Harris, the remedy defendant

seeks, to allow the court to strike the serious felony

enhancement but otherwise retain the plea bargain, would

frustrate the Legislature’s intent to have section 1385 apply

uniformly, regardless of the type of enhancement at issue, by

granting the court a power it would otherwise lack for any other

enhancement. That Senate Bill 1393 is silent regarding pleas

and provides no express mechanism for relief undercuts any

suggestion that the Legislature intended to create special rules

for plea cases involving serious felony enhancements.

Recently enacted Assembly Bill No. 1618 (2019-2020 Reg.

Sess.), cited by defendant, does not change this analysis. That

bill added section 1016.8, which codified our 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)), and clarified that any “provision of a plea bargain

that requires a defendant to generally waive future benefits of

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legislative enactments, initiatives, appellate decisions, or other

changes in the law that may retroactively apply after the date

of the plea is void as against public policy” (§ 1016.8, subd. (b)).

As we reasoned ante, we agree with defendant that Senate Bill

1393 should be applied retroactively to him, and the

circumstance that his conviction resulted from a plea agreement

did not change that conclusion. However, this bill, like Estrada,

says nothing about the proper remedy should we conclude a law

retroactively applies.

2. Limited Remand Is Appropriate

Although we reject defendant’s contention that the court

on remand should be allowed to exercise its discretion to reduce

his prison term by five years but otherwise maintain the plea

bargain, he is nevertheless entitled to some relief. The proper

remedy requires an examination of the court’s role in approving

a plea agreement. “The process of plea bargaining which has

received statutory and judicial authorization as an appropriate

method of disposing of criminal prosecutions contemplates an

agreement negotiated by the People and the defendant and

approved by the court. [Citations.] Pursuant to this procedure

the defendant agrees to plead guilty in order to obtain a

reciprocal benefit, generally consisting of a less severe

punishment than that which could result if he were convicted of

all offenses charged. [Citation.] This more lenient disposition

of the charges is secured in part by prosecutorial consent to the

imposition of such clement punishment [citation], by the

People’s acceptance of a plea to a lesser offense than that

charged, either in degree [citations] or kind [citation], or by the

prosecutor’s dismissal of one or more counts of a multi-count

indictment or information. . . . But implicit in all of this is a

process of ‘bargaining’ between the adverse parties to the case—

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the People represented by the prosecutor on one side, the

defendant represented by his counsel on the other—which

bargaining results in an agreement between them.” (People v.

Orin (1975) 13 Cal.3d 937, 942-943; see Collins, supra, 21 Cal.3d

at p. 214; § 1192.5.) “Judicial approval is an essential condition

precedent to the effectiveness of the ‘bargain’ worked out by the

defense and prosecution.” (Orin, at pp. 942-943; see People v.

Martin (2010) 51 Cal.4th 75, 79.)

The statutory scheme contemplates that a court may

initially indicate its approval of an agreement at the time of the

plea but that “it may, at the time set for the hearing on the

application for probation or pronouncement of judgment,

withdraw its approval in the light of further consideration of the

matter . . . .” (§ 1192.5.) “The code expressly reserves to the

court the power to disapprove the plea agreement” up until

sentencing. (Kim, supra, 193 Cal.App.4th at p. 1361.) “In

exercising their discretion to approve or reject proposed plea

bargains, trial courts are charged with the protection and

promotion of the public’s interest in vigorous prosecution of the

accused, imposition of appropriate punishment, and protection

of victims of crimes. [Citation.] For that reason, a trial court’s

approval of a proposed plea bargain must represent an informed

decision in furtherance of the interests of society . . . .” (In re

Alvernaz (1992) 2 Cal.4th 924, 941.)

“[T]he court, upon sentencing, has broad discretion to

withdraw its prior approval of a negotiated plea.” (People v.

Johnson (1974) 10 Cal.3d 868, 873.) “Generally, a trial court

may exercise its discretion to withdraw approval of a plea

bargain because: (1) it believes the agreement is ‘unfair’

[citation]; (2) new facts have come to light; (3) the court has

become more fully informed about the case; or (4) when, after

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further consideration, the court concludes that the agreement is

‘ “ ‘not in the best interests of society’ ” ’ [citation]. But this list

is not exhaustive.” (People v. Mora-Duran (2020) 45 Cal.App.5th

589, 595-596 (Mora-Duran).)

Guided by these principles, People v. Ellis (2019) 43

Cal.App.5th 925 (Ellis) addressed the proper remedy in the

present context. Although Ellis agreed “that Senate Bill No.

1393 does not entitle defendants who negotiated stipulated

sentences ‘to whittle down the sentence “but otherwise leave the

plea bargain intact,” ’ ” the court reasoned “Senate Bill No. 1393

compels the conclusion that defendant is entitled to seek the

benefit of change in the law.” (Ellis, at pp. 943-944.) Ellis

initially observed that, on remand, “the trial court may simply

decline to exercise its discretion to strike the enhancement and

that will end the matter.” (Id. at p. 944.) “In other cases, the

trial court might conclude, upon the defendant’s request, that it

is in the interest of justice to strike the enhancement. In such

cases, it bears repeating that ‘in the context of a negotiated plea

the trial court may approve or reject the parties’ agreement, but

the court may not attempt to secure such a plea by stepping into

the role of the prosecutor, nor may the court effectively

withdraw its approval by later modifying the terms of the

agreement it had approved.’ [Citations.] ‘Yet, courts have broad

discretion to withdraw their approval of negotiated pleas.

[Citation.] “ ‘Such withdrawal is permitted, for example, in

those instances where the court becomes more fully informed

about the case [citation], or where, after further consideration,

the court concludes that the bargain is not in the best interests

of society.’ ” [Citation.] However, once a court withdraws its

approval of a plea bargain, the court cannot “proceed to apply

and enforce certain parts of the plea bargain, while ignoring”

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others. [Citation.] Instead, the court must restore the parties

to the status quo ante.’ [Citations.] Thus, while there may be

cases in which the trial court will elect to strike the serious

felony conviction enhancement, it is not without consequence to

the plea bargain.” (Ibid., italics omitted.)

Ellis rejected the People’s argument that a remand would

be futile “because the trial court accepted the plea bargain and

sentenced defendant to the stipulated sentence.” (Ellis, supra,

43 Cal.App.5th at p. 945.) After noting that the court, at the

time of sentencing, was unaware of its discretion to strike the

serious felony enhancement granted by Senate Bill 1393, Ellis

reasoned: “The parties agreed to a sentence of eight years four

months, which the trial court approved and imposed. We agree

that if the court were to strike or dismiss the enhancement, or

stay the sentence on the enhancement, defendant’s sentence

would be reduced significantly and, therefore, as set forth

previously, there are consequences attendant to defendant’s

request for the court to exercise its discretion under Senate Bill

No. 1393. [Citations.] However, the record does not clearly

demonstrate that remand would be futile [citations], and the

parties’ plea bargain is not insulated from the changes in the

law effected by Senate Bill No. 1393.” (Ellis, at p. 946.) Ellis

concluded “defendant is entitled to a limited remand to allow

him the opportunity to request relief under Senate Bill No.

1393.” (Ibid.)

We are persuaded by Ellis. At the time the court accepted

the plea agreement and sentenced defendant, the law did not

allow it to consider striking the serious felony enhancement in

furtherance of justice under section 1385. Senate Bill 1393

changed the law to allow such discretion, and we have now

concluded that provision applies retroactively. If he desires,

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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 defendant’s sentence stands.

However, if the court is inclined to exercise its discretion,

as Ellis observed, such a determination would have

consequences to the plea agreement. For the reasons discussed

ante, the court is not authorized to unilaterally modify the plea

agreement by striking the serious felony enhancement but

otherwise keeping the remainder of the bargain. 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 . . . .”

(Kim, supra, 193 Cal.App.4th at p. 1362.)

Further, the court may withdraw its prior approval of the

plea agreement. The court’s authority to withdraw its approval

of a plea agreement has been described as “near-plenary.”

(People v. Stringham (1988) 206 Cal.App.3d 184, 195; see Mora-

Duran, supra, 45 Cal.App.5th at p. 595.) The court’s exercise of

its new discretion to strike the serious felony 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. Section 1192.5 contemplates

that “[a] change of the court’s mind is thus always a possibility.”

(Stringham, at p. 194.)

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In light of these potential consequences to the plea

agreement, we emphasize that it is ultimately defendant’s

choice whether he wishes to seek relief under Senate Bill 1393.

As Ellis reasoned: “Given that defendants in criminal cases

presumably obtained some benefit from the plea agreement, we

anticipate that there will be defendants who determine that,

notwithstanding their entitlement to seek relief based on the

change in the law, their interests are better served by

preserving the status quo. That determination, however, lies in

each instance with the defendant.” (Ellis, supra, 43 Cal.App.5th

at p. 944.) While it is true that defendant has consistently

argued on appeal that Senate Bill 1393 should retroactively

apply to him, his argument has always been coupled with his

claim that the proper remedy should be to simply allow the trial

court to reduce his sentence by five years while otherwise

maintaining the remainder of the plea agreement. Now that we

have rejected his proposed remedy, defendant’s calculus in

seeking relief under Senate Bill 1393 may have changed.

Defendant should be allowed to make an informed decision

whether to seek relief on remand.

People v. Wilson (2019) 42 Cal.App.5th 408 (Wilson) came

to a contrary conclusion, reasoning a remand was not

warranted: “[A]ssume that a trial court acting in the here and

now, with the benefit of Senate Bill No. 1393, is presented with

a stipulated plea that includes a five-year term under section

667, subdivision (a)(1). This, of course, means that the

defendant has agreed to the five-year term. But let us indulge

the fanciful notion that the trial court refuses to take the plea if

it includes such a term because it would strike it. What would

then happen? The trial court could not modify the plea to reduce

it by five years. The trial court would have to reject the plea.

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The prosecution would then find another way to get to its

number, or the plea agreement would fall through. The point is

this: what the trial court thinks the number should be is largely

irrelevant, as this is not an open plea. A trial court must accept

the negotiated plea or reject the bargain outright, but it cannot

come up with its own number.” (Id. at p. 414.)

Wilson’s reasoning misses the mark. It is settled that a

court may evaluate the fairness of a proposed sentence in

determining whether to approve the bargain. (See People v.

Segura (2008) 44 Cal.4th 921, 931.) In that regard, “what the

trial court thinks the number should be” is not irrelevant as

Wilson suggested. (Wilson, supra, 42 Cal.App.5th at p. 414.)

Further, it may not always be the case that the agreed-upon

sentence can be reconstituted with other offenses or

enhancements, and that, coupled with a court’s exercise of its

new found discretion to strike the serious felony enhancement,

may lead the court to reevaluate the fairness of the bargained-

for sentence. These new circumstances may also lead the

parties to reevaluate what constitutes a fair disposition of the

case. In any event, we agree with Ellis that short-circuiting this

process by refusing a limited remand “would be effectively

insulating the agreement from retroactive changes in the law,

in contravention of the law.”6 (Ellis, supra, 43 Cal.App.5th at p.

946.)

6

We disapprove People v. Wilson, supra, 42 Cal.App.5th

408.

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III. DISPOSITION

The judgment of the Court of Appeal is reversed with

directions to remand the matter to the superior court to allow

defendant an opportunity to seek relief under Senate Bill 1393.

CORRIGAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

28

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Stamps

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XX 34 Cal.App.5th 117

Rehearing Granted

__________________________________________________________________________________

Opinion No. S255843

Date Filed: June 25, 2020

__________________________________________________________________________________

Court: Superior

County: Alameda

Judge: James P. Cramer

__________________________________________________________________________________

Counsel:

James S. Donnelly-Saalfield, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys

General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit, Eric D. Share, Elizabeth W.

Hereford and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

James S. Donnelly-Saalfield

First District Appellate Project

475 Fourteenth Street, Suite 650

(415) 495-3119

Elizabeth W. Hereford

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 510-3801