Metropolitan News-Enterprise


Tuesday, July 10, 2018


Page 1


Court of Appeal:

Certificate of Probable Cause Not Needed Where Law Is Changed

Enactment of Bill Permitting Striking of Enhancement That Was Component of a Sentence Confers Right to Appeal Remand Is Appropriate Unless Demonstrably Futile


By a MetNews Staff Writer


A man who pled no contest to attempted murder as part of a plea bargain, under which he was to receive a 25-year prison sentence, may appeal that sentence without obtaining a certificate of probable cause in light of new legislation giving the judge discretion to strike an enhancement, the Court of Appeal for this district held yesterday.

Justice Brian Hoffstadt of Div. Two wrote:

“As a general rule, a criminal defendant who enters a guilty or no contest plea with an agreed-upon sentence may challenge that sentence on appeal only if he or she first obtains a certificate of probable cause from the trial court….Does this general rule apply when the defendant’s challenge to the agreed-upon sentence is based on our Legislature’s enactment of a statute that retroactively grants a trial court the discretion to waive a sentencing enhancement that was mandatory at the time it was incorporated into the agreed-upon sentence? We conclude that the answer is ‘no,’ and hold that a certificate of probable cause is not required in these narrow circumstances.”

For defendant Daryl Glen Hurlic, this means an opportunity to attempt to persuade Los Angeles Superior Court Judge Michael Shultz that the previously mandatory 20-year enhancement based on personal discharge of a firearm be stricken.

Entitlement to Remand

In a portion of the opinion that was not certified for publication, Hoffstadt said:

“[A] remand is called for unless the trial court expressly and specifically speaks to how it would have hypothetically exercised a discretion it did not have at the time. Here, the trial court did not say anything about whether it might strike the firearm enhancement, let alone clearly indicate that it would not. Thus, defendant is entitled to a remand.”

Hurlic was originally charged with three counts of attempted premeditated murder and that the crimes were in connection with gang activity. As part of the plea bargain, he was allowed to plead, in March of last year, to a single count of attempted murder.

 On Oct. 11, Gov. Jerry Brown signed a bill, which was effective Jan. 1, authorizing the striking of firearm enhancements under Penal Code §12022.53(h). Hurlic filed a timely notice of appeal on Oct. 31.

Attorney General’s Position

The Office of Attorney General argued that the appeal could not be considered in light of Hurlic failing to obtain a certificate of probable cause, as required by Penal Code §1237.5.

Hoffstadt acknowledged that there is case law indicating that a certificate of probable cause is indispensable to an appeal if the defendant was given the precise sentence provided for in a plea bargain. There are also cases, he noted, saying that statutes lessening a punishment are presumed, unless the Legislature  has spoken to the contrary, to all nonfinal convictions.

“So which line of authority prevails?” Hoffstadt asked. “We conclude that the authority regarding retroactivity trumps….”

The jurist explained that the plea bargain is a contract, and the one in issue contained no term providing that only existing law would be applied, thus permitting a change in the sentence based on subsequent law without a withdrawal of the plea.

Screening Not Needed

He continued:

“[W]here, as here, the defendant’s entitlement to a new law’s retroactive application is undisputed, an appeal seeking such application is neither ‘frivolous’ nor ‘vexatious,’ thereby obviating any need for section 1237.5’s screening mechanism.”

Hoffstadt recited the rule that in weighing two statutes, the one that is more specific controls, declaring:

“[I]n the tug-of-war between our Legislature’s competing intents to have a screening mechanism for appeals following pleas and to give defendants whose convictions are not yet final the benefit of a possible sentencing reduction, the latter intent prevails.”

The case is People v. Hurlic, B286082.


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