Monday, May 6, 2019
Court of Appeal:
Majority: Defendant Who Entered Into Plea Bargain and Now Seeks Remand So That Judge Can Exercise New Discretion to Strike Firearm Enhancement Must Have Certificate of Probable Cause
Dissent: No Certificate Is Needed Where Defendant Invokes Law Not in Effect When Sentenced
By a MetNews Staff Writer
Div. One of the First District Court of Appeal on Friday, in a 2-1 decision, dismissed the appeal of a sentence because the defendant had not secured a certificate of probable cause, repudiating the view of this district’s Div. Two, and courts embracing its position, that a certificate is not needed where new legislation is invoked giving a judge discretion to strike a firearm enhancement.
Presiding Justice Jim Humes, joined by Justice Kathleen M. Banke, declared that the appeal of Brian K. Fox, who was sentenced to 15 years in prison pursuant to a plea bargain, can’t be considered. Justice Gabriel P. Sanchez dissented.
The majority declined to follow the July 9, 2018 opinion in People v. Hurlic, authored by Justice Brian M. Hoffstadt, concurred in by Presiding Justice Elwood Lui and Justice Judith Ashmann-Gerst.
Ten years of Fox’s 15-year sentence, imposed in September 2017, was based on his admission of personally using a firearm in the course of a robbery. He sought a remand so that he could ask that the judge exercise his discretion—created by SB 620, signed into law on Oct. 11 2017, the same day he was sentenced but not effective until Jan. 1, 2018—to strike the enhancement, potentially paring 10 years from the sentence.
Fox relied on Hurlic, in which Hoffstadt said:
“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. Because we are unable to say that there is ‘no reasonable possibility’ that the trial court would decline to exercise its newfound sentencing discretion, we vacate the judgment and remand for a new sentencing hearing to decide whether to exercise that discretion.”
Hoffstadt said that courts have unanimously held that SB 620 applies retroactively, and that “the authority regarding retroactivity trumps” cases requiring a certificate of probable cause.
Hurlic was followed last year by the Sixth District Court of Appeal in People v. Baldivia and by the First District’s Div. Four earlier this year in People v. Stamps.
Those cases, Humes said, “are not convincing.” He wrote:
“We agree that Senate Bill No. 620 applies to defendants whose judgments were not final when the law took effect, that it permits those who did not agree to serve a specific term for a firearm enhancement to seek resentencing, and that it permits those who did agree to a specific sentence to seek to withdraw from their pleas. But we perceive no legislative intent to authorize trial courts to reduce agreed-upon sentences while otherwise permitting defendants to retain the benefits of their plea agreements and avoid the likely risk of having to continue defending against the charges.”
“Fox, who entered his plea after Senate Bill No. 620 was passed but happened to be sentenced before it took effect, is asking for an extraordinary remedy to which no defendants currently being sentenced are entitled. Since the only relief Fox could obtain under Senate Bill No. 620 would require him to challenge the validity of his plea by seeking to withdraw it, we must dismiss his appeal for failure to obtain a certificate of probable cause.”
Humes went to say:
“[W]e disagree with Hurlic’s initial premise that a conflict exists between the line of authority involving certificates of probable cause and the line of authority recognizing Senate Bill No. 620’s retroactive effect, requiring a determination of which authority ‘prevails.’…Just because Senate Bill No. 620 applies to Fox’s nonfinal judgment after a plea does not mean that Fox ‘is entitled to have the trial court exercise its discretion’ under the new law without regard to other legal requirements….Nothing prevented Fox—who was fully aware by the time he appealed that Senate Bill No. 620 had been signed into law—from seeking a certificate on the issue. Indeed, nothing prevented the Hurlic defendant from doing so.”
While rejecting the reasoning in Hurlic, Baldivia and Stamps, Humes also distinguished those cases, saying that the defendants in each of those cases pled and were sentenced before SB 620 was enacted. He noted the comment in Hurlic that “we have no occasion to address whether a defendant whose plea agreement was negotiated while Senate Bill No. 620 was already part of the legal landscape must obtain a certificate of probable cause.”
“In this case, the bill was ‘already part of the legal landscape’ before Fox entered his plea and was sentenced upon it, and his trial counsel’s comments at the sentencing hearing reveal that in agreeing to a 10-year term for the firearm enhancement the parties understood that Fox would not have the benefit of the new law once it went into effect.”
Sanchez said in his dissent:
“[N]othing in the record supports the majority’s assertion that Senate Bill No. 620 was part of the legal landscape when Fox entered his plea on September 19, 2017. At the hearing in which Fox entered his plea, there is no mention of Senate Bill No. 620 or any other pending legislation. Moreover, Senate Bill No. 620 was just that, a bill, and would not become law until signed by the Governor on October 11, 2017….There is no indication the parties were aware of Senate Bill No. 620 at this point or that it figured into their plea negotiations or Fox’s entry of his plea. Common sense would suggest that a legal change cannot be ‘part of the legal landscape’ if it has not become law.
“At the sentencing hearing on October 11, 2017, the record indicates some awareness about Senate Bill No. 620, mixed with considerable confusion.”
Humes responded, in a footnote:
“[W]e believe the relevant consideration is the parties’ awareness of a pending change. Here, even though Senate Bill No. 620 was signed into law the same day Fox was sentenced, it was enrolled before he entered his plea, and there was no indication that a gubernatorial veto was likely. Moreover, Fox had actual knowledge of the bill by the time of the sentencing hearing, and he could have sought to withdraw his plea at that point had he wished to obtain the potential benefit of the new law….At the very least, Fox knew of the new law long before the deadline for filing a timely request for a certificate of probable cause on the issue he now pursues.”
The case is People v. Fox, 2019 S.O.S. 2123.
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