People v. Kelly ( 2019 )

Filed 3/6/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B291220
(Super. Ct. No. 2017008225)
Plaintiff and Respondent, (Ventura County)
v.
GLORIA NYLEEN KELLY,
Defendant and Appellant.
Gloria Nyleen Kelly, a three strikes offender, stipulated to
an 18-year state prison sentence in exchange for a plea to first
degree burglary of a residence with another person present (Pen.
1
Code, §§ 459, 667.5, subd. (c)(21)) plus enhancements. Appellant
admitted a prior strike conviction (§§ 667, subds. (c)(2) & (e)(2),
1170.12, subds. (a)(2) & (c)(2)), two prior serious felony
convictions (§ 667, subd. (a)(1)), and seven prior prison term
enhancements (§ 667.5, subd. (b)). The trial court sentenced
appellant to four years on the burglary count, doubled to eight
years for the prior strike, plus 10 years on the two five-year prior
All statutory references are to the Penal Code unless
1
otherwise stated.
serious felony enhancements (§ 667, subd. (a)(1)). The prior
prison term enhancements were stricken in the interests of
justice. (§ 1385.) She purports to appeal, contending that the
matter must be remanded to the trial court to exercise its
discretion to strike the five-year serious felony conviction
enhancements pursuant to recently enacted Senate Bill 1393.
(Legis. Counsel’s Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.)
Stats. 2018, ch. 1013, §§ 1, 2.) We dismiss the appeal because
appellant failed to obtain a certificate of probable cause.
(§ 1237.5; People v. Panizzon (1996) 13 Cal. 4th 68, 89-90 & fn. 15
(Panizzon).)
Procedural History
In May 2018, appellant waived preliminary hearing and
entered in to a negotiated disposition for an 18-year sentence in
case no. 2017008225 and a 16-month consecutive sentence in case
no. 2016027319 for driving under the influence of alcohol with
injury to a person. (Veh. Code, § 23153, subd. (e).) It was a
“package deal,” disposing of two cases. The written plea
agreement stated that the prosecution agrees to “18 years consec
to 1 yr 4 mos in [case no.] 2016027319[. The prosecution] will
strike two strikes for purposes of sentencing only. [Section 667,
subdivision] (a) priors will still be imposed.” When the change of
plea was entered, appellant’s trial attorney agreed that a
sentence would be 18 years in case no. 2017008225.
S.B. 1393
On September 30, 2018, the Governor signed S.B. 1393
which, effective January 1, 2019, amends sections 667 and 1385
to give trial courts the discretion to dismiss five-year sentence
enhancements under section 667, subdivision (a). (See Legis.
Counsel’s Dig. to S.B. 1393 [“This bill would delete the restriction
2
prohibiting a judge from striking a prior serious felony conviction
in connection with imposition of [a] 5-year enhancement”].)
Appellant argues, and the Attorney General concedes, that S.B.
1393 applies because appellant’s case is not yet final. (People v.
Garcia (2018) 28 Cal.App.5th 961, 973 [S.B. 1393 applies to all
cases not yet final when S.B. 1393 becomes effective on January
1, 2019].)
Certificate of Probable Cause
The Attorney General argues that the appeal should be
dismissed because appellant did not obtain a certificate of
probable cause. (§ 1237.5.) We agree. “[A] certificate of probable
cause is required if the challenge goes to an aspect of the
sentence to which the defendant agreed as an integral part of the
plea agreement.” (People v. Johnson (2009) 47 Cal. 4th 668, 678;
Panizzon, supra, 13 Cal.4th at p. 73.) In contrast, a certificate of
probable cause is not required to challenge the trial court’s
exercise of sentencing discretion where the plea agreement does
not specify a particular sentence. (People v. Buttram (2003) 30
Cal. 4th 773, 790-791; People v. Hurlic (2018) 25 Cal.App.5th 50,
55-56 (Hurlic).) Here, appellant and the prosecution agreed to an
18-year sentence. There was no exercise of discretion.
Relying on Hurlic, appellant argues that the plea
agreement implicitly incorporates future changes in the law and
that appellant should get the benefit of S.B. 1393. In Hurlic,
supra, 25 Cal.App.5th 50, defendant was charged with three
counts of attempted premeditated murder with gang and firearm
enhancements. (Id. at p. 53.) Defendant agreed to a 25-year
state prison sentence in exchange for a plea of no contest to one
count of attempted murder and admitted a 20-year firearm
enhancement (§ 12022.53, subd. (c)). (Id. at pp. 53-54.) A month
3
after the sentence was imposed, the Governor signed Senate Bill
No. 620, which amended section 12022.53 to grant trial courts
the discretion to strike section 12022.53 firearm enhancements.
(Id. at p. 54.)
The Court of Appeal in Hurlic dispensed with the
certificate of probable requirement based on very “narrow
circumstances.” (Hurlic, supra, 25 Cal.App.5th at p. 53.)
Defendant “did not check the box on the first page indicating that
his appeal ‘challenge[d] the validity of the plea or admission,’ but,
in the blank space where defendants are to spell out why they are
requesting a certificate of probable cause, defendant wrote that
he sought to avail himself of ‘the new Senate Bill 620.’” (Id. at
p. 54.) The Court of Appeal concluded that a certificate of
probable cause was not required and remanded the matter to the
trial court to exercise its discretion whether to lessen defendant’s
sentence pursuant to newly amended section 12022.53, subd. (h).
(Id. at p. 59.)
Unlike Hurlic, appellant’s notice of appeal does not say that
appellant seeks to avail herself of a new law. Appellant entered
into a negotiated disposition for an 18-year sentence to avoid a
maximum sentence of 29 years. The five-year prior
enhancements were a bargained-for component of the sentence.
(See, e.g., People v. Enlow (1998) 64 Cal. App. 4th 850, 853-854
[declining to allow challenge to stipulated sentence without
certificate of probable cause; even if certificate was unnecessary,
remedy would be withdrawal of plea, not reduction of sentence].)
Stipulated Sentence
A written negotiated disposition, if approved by the trial
court, binds the parties and the court. (People v. Segura (2008)
44 Cal. 4th 921, 930.) Once the trial court has accepted the terms
4
of a negotiated plea that provides for a stipulated sentence, it
lacks jurisdiction to alter the terms of the plea bargain to make it
more favorable to the defendant. (Id. at p. 931.) “‘“A plea
agreement is, in essence, a contract between the defendant and
the prosecutor to which the court consents to be bound.”
[Citation.] . . . ’” (Ibid.) Like any other contract, “[h]e who takes
the benefit must bear the burden.” (Civ. Code, § 3521.)
Appellant asserts that remand for resentencing is required
to give the trial court the opportunity to exercise its newfound
discretion under S.B. 1393. (See, e.g., People v. Rodriguez (1998)
17 Cal. 4th 253, 258 [limited remand to permit trial court to make
threshold determination whether to exercise its discretion to
strike prior conviction allegation].) If we were to remand for
resentencing, the trial court would still be bound by the terms of
the plea agreement which provides a floor and ceiling of 18 years
state prison. (See People v. Buycks (2018) 5 Cal.5th 857, 893-894
[discussing full resentencing rule]; People v. Sellner (2015) 240
Cal. App. 4th 699, 701-702.)
As a term of the negotiated disposition, appellant executed
a Harvey waiver (People v. Harvey (1979) 25 Cal. 3d 754),
permitting the trial court to consider any prior convictions and
sentencing enhancements that were dismissed. Appellant is a
three strikes offender and has a long criminal history dating back
to 1988 for drug and theft-related crimes, two prior strike
convictions (a 1989 robbery conviction with a firearm and a 2011
conviction for first degree residential burglary), two prior serious
2
felony convictions, and at least five prison prior enhancements.
Although appellant admitted seven prior prison
2
enhancements, trial counsel stated “we believe it’s five prison
5
Appellant wants to whittle down the sentence “but
otherwise leave the plea bargain intact. This is bounty in excess
of that to which [s]he is entitled.” (People v. Collins (1978) 21
Cal. 3d 208, 215.) “[D]efendants who have received the benefit of
their bargain should not be allowed to trifle with the courts by
attempting to better the bargain through the appellate process.
[Citations.]” (People v. Hester (2000) 22 Cal. 4th 290, 295.)
People v. Wright (2019) 31 Cal.App.5th 749 (Wright) is
distinguishable. There, a drug dealer pled guilty to transporting
a controlled substance (Health & Saf. Code, § 11352, subd. (a))
and admitted a strike prior and a prior conviction for violation of
Health & Safety Code section 11351.5, which triggered the
imposition of a mandatory three-year enhancement under former
section 11370.2, subdivision (a). Wright stipulated to a 11-year
prison term and appealed on the ground that a 2018 amendment
to Health and Safety Code section 11370.2 retroactively limited
the enhancement to prior convictions for violation of section
11380. The trial court granted Wright’s request for a certificate
of probable cause and the Court of Appeal granted Wright’s
unopposed motion to deem the certificate of probable cause
operative for purposes of appeal. The Wright court held “[‘t]his
order moots the People’s contention that the appeal should be
dismissed for lack of a certificate of probable cause . . . .” (Wright,
supra, at p. 753.)
priors because [in] four of those cases [appellant] served two
[sentences] as one prison commitment and another two as
another prison commitment for a total of five. I know it shows
seven convictions, but it’s five prison commitments. I don’t think
it’s going to make much of a difference though, is it?”
6
Unlike Wright, appellant did not request or obtain a
certificate of probable cause. Pursuant to principles of stare
decisis we are bound to follow the Supreme Court’s holding in
Panizzon, supra, 13 Cal.4th at pp. 89-90 & fn. 15. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.) S.B.
1393 does not overrule Panizzon or the certificate of probable
cause statute (§ 1237.5). In Wright, supra, the change in the law
mandated that the three-year enhancement be stricken because
it was “‘unauthorized.’” (Id. at p. 752.) Here, the change in the
law (S.B. 1393) vests the trial court with the discretion to strike
one or both five-year enhancements, but it is not mandatory.
Finally, even if the trial court would strike the two five-
year priors, it could reconfigure the sentence choices to achieve a
substantially similar aggregate sentence. It could choose the
upper six-year term on the burglary, double it to 12 years, and
impose one year each for the prior prison terms.
Disposition
The appeal is dismissed because appellant failed to obtain a
certificate of probable cause.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Jonathan B. Steiner, Executive Director, Richard B.
Lennon, Staff Attorney for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, Ryan M. Smith, Deputy Attorney General, for
Plaintiff and Respondent.