Opinion
F077302
11-06-2019
THE PEOPLE, Plaintiff and Respondent, v. ANDREW MICHAEL BRISENO, Defendant and Appellant.
Kendall D. Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 1230165, 1223253, 1098092)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley and Linda A. McFadden, Judges. Kendall D. Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Snauffer, J.
Judge McFadden presided over appellant's change of plea and initial sentencing hearing; Judge Ashley sentenced appellant.
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Defendant Andrew Michael Briseno contends his case should be remanded to give the trial court the opportunity to exercise its newly granted discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) to consider striking his firearm enhancement. The People counter that remand is inappropriate because defendant entered into a plea agreement with both a waiver of appellate rights and a stipulated sentence. We vacate the sentence and remand for the trial court to consider whether to strike the enhancement.
BACKGROUND
On September 21, 2017, defendant pled no contest in three cases in return for a stipulated term of 26 years in prison. In case No. 1230165, he pled no contest to voluntary manslaughter (§ 192, subd. (a); count 1), assault likely to produce great bodily injury (§ 245, subd. (a)(1); count 4), and being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 5). As to count 1, defendant admitted personally using a firearm in the commission of the crime (§ 12022.5, subd. (a)) and being on bail when he committed the crime (§ 12022.1). In case No. 1223253, defendant pled no contest to being a felon in possession of ammunition (former § 12316, subd. (b)(1)). In case No. 1098092, he admitted violating probation.
All statutory references are to the Penal Code unless otherwise noted.
The same day, the trial court sentenced defendant in case No. 1230165 to 11 years on count 1, plus 10 years for the firearm enhancement and two years for the on-bail enhancement; one year on count 4; and eight consecutive months on count 5. In both case No. 1223253 and case No. 1098092, the court imposed eight consecutive months.
DISCUSSION
I. Law
Senate Bill No. 620, effective January 1, 2018, permits a trial court, in its discretion, to strike firearm enhancements imposed under sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c) & 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.) The statutes provide that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c) & 12022.53, subd. (h).) The amended statutes apply retroactively to defendants whose sentences were not final at the time Senate Bill No. 620 came into effect. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; see People v. Hurlic (2018) 25 Cal.App.5th 50, 56 [courts have unanimously concluded that Senate Bill No. 620's grant of discretion applies retroactively to all nonfinal convictions].) "[A] remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 [remand is required when "the record does not 'clearly indicate' the court would not have exercised discretion to strike the firearm allegations had the court known it had that discretion"].)
A defendant's ability to appeal after entering into a plea may depend on the rights he waives as a part of the plea agreement. Where the waiver is knowing, intelligent and voluntary, a defendant may waive his right to appeal as part of the plea bargain. (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) Case law distinguishes between general and specific appellate waivers. A general waiver, such as " 'I waive my appeal rights' " or " 'I waive my right to appeal any ruling in this case,' " contemplates errors that occurred before the waiver is executed but does not extend to unforeseen or unknown future errors. (People v. Panizzon (1996) 13 Cal.4th 68, 85, fn. 11; In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) A specific waiver, on the other hand—such as " 'I hereby waive and give up my right to appeal from the sentence I will receive in this case' "—"by its very terms ... specifically extend[s] to any right to appeal such sentence." (Panizzon, at pp. 82, 85-86.)
II. Facts
At the plea hearing on September 21, 2017, the following occurred:
"[PROSECUTOR]: Your Honor, I apologize. In addition to ... both defendants waiving all credits in these cases, we're asking they waive their appellate rights as to the plea.
"THE COURT: All right. I will do that here shortly. Let me go through here, then, with you some further advisements, gentlemen."
The court proceeded to give further advisements. Then the following occurred:
"THE COURT: I will be imposing, then, various parts of your sentence today. If you do not agree with anything I tell you, let me know or you'll be giving up your right to complain about the sentence to a higher court.
"Do you understand this, [defendant]?
"THE DEFENDANT BRISENO: Yes, ma'am." (Italics added.)
After more advisements, the court took defendant's actual waiver of appellate rights, as follows:
"THE COURT: All right. Sounds good. [¶] And then, gentlemen, you normally have the right to appeal any of the issues in this case to a higher court.
"Do you understand this right, [defendant]?
"THE DEFENDANT BRISENO: Yes, ma'am. [¶] ... [¶]
"THE COURT: And do you give up this right, [defendant]?
"THE DEFENDANT BRISENO: Yes, ma'am."
III. Analysis
Defendant contends remand is appropriate for the trial court to consider whether to strike his firearm enhancement under Senate Bill No. 620. The People counter, first, that defendant's waiver of appellate rights indicates the parties intended to insulate the plea from future legislative changes and, second, that the trial court's acceptance of the stipulated sentence indicates the court would not in any event have exercised its discretion to strike the firearm enhancement. Citing only the last interaction between defendant and the court, supra, defendant replies that his waiver of appellate rights was a general waiver that did not waive his right to appeal the sentence and future changes in the law, including Senate Bill No. 620.
The current state of case law is unsettled. The resolution of this case may turn on whether defendant's appellate waiver was a specific waiver of his right to appeal the sentence. Or it may instead turn on whether—despite his stipulated sentence and appellate waiver—he did not waive his right to appeal the sentence because newly enacted legislation should apply retroactively to enable him to obtain a remand for resentencing. We will explain.
In this court's recent case of People v. Barton (2019) 32 Cal.App.5th 1088 (review granted June 19, 2019 (S255214) (Barton)), we believed the case turned on whether the defendant's appellate waiver was a specific waiver of the right to appeal the sentence. The defendant had entered a plea to a stipulated sentence and waived her appellate rights. Later, she sought to benefit from retroactive application of the newly enacted Senate Bill No. 180 (2017-2018 Reg. Sess.), which amended former Health and Safety Code section 11370.2 by eliminating its three-year enhancements for most drug-related prior convictions. (Barton, at p. 1091.)
On appeal, the parties agreed Senate Bill No. 180 applied retroactively based on In re Estrada (1965) 63 Cal.2d 740, but disagreed whether it applied to the defendant to vacate her enhancements. (Barton, supra, 32 Cal.App.5th at p. 1091.) We concluded her appellate waiver was a specific waiver of her right to appeal from sentencing issues: "I understand that I will be waiving my right to appeal and I will not be able to appeal from this Court's sentence based on the plea that I enter into in this matter." (Id. at p. 1095, italics added.) We "perceive[d] no material distinction between the waiver of appeal rights in Panizzon, which was found to be specific as to sentencing error, and the waiver executed by defendant Barton. In Panizzon, the written agreement stated, ' "I hereby waive and give up my right to appeal from the sentence I will receive in this case." ' " (Barton, at p. 1095.) We noted "Panizzon found [this type of language] to constitute a specific waiver of the right to appeal ' "future sentencing error." ' " (Id. at p. 1092.) Accordingly, the defendant had waived her right to appeal the sentence, including the retroactive sentencing benefits of Senate Bill No. 180. We said: "Where, as here, the parties' agreement includes a specified prison term and a waiver of the right to appeal the sentence, the waiver precludes future challenges to the legality of the agreed-upon period of confinement. [Citation.] Therefore, we dismiss the appeal." (Barton, at p. 1092.)
The Supreme Court, however, granted review of Barton on June 19, 2019 (S255214), and has limited briefing to the following issue:
"Does a waiver of the right to appeal, included as part of a plea bargain for a stipulated sentence, bar an appeal of the sentence imposed if newly enacted legislation would otherwise be available to enable the appellant to obtain a remand for resentencing under In re Estrada (1965) 63 Cal.2d 740? (See Cal. Rules of Court, rule 8.516(a)(1).)" (<https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2283754&doc_no=S255214&request_token=NiIwLSIkTkg%2FWyBRSCM9SExIIEg0UDxTJiNOTztSMCAgCg%3D%3D> [as of Oct. 29, 2019].)
In resolving the present case, we first disagree with the People that the trial court's acceptance of the stipulated sentence in the plea agreement was itself adequate to constitute a clear indication the court would not have exercised its discretion to strike the firearm enhancement. Moreover, we find no other such indication in the record.
As for the waiver of appellate rights, we need not decide whether the waiver in this case constituted a specific waiver of the right to appeal the sentence because, in light of the Supreme Court's consideration of Barton, and out of an abundance of caution, we decide the prudent course is to remand for the trial court to exercise its newly granted discretion to consider whether to strike the firearm enhancement.
We note that our decision to follow this course was very recently sanctioned—not by the Supreme Court but by the Legislature—when the governor signed Assembly Bill No. 1618 (2019-2020 Reg. Sess.), which will add section 1016.8, effective on January 1, 2020 (Stats. 2019, ch. 586, § 1). The Legislative Counsel's Digest states, in part: "This bill would make a provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea, void as against public policy." (<http://www.leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1618> [as of Oct. 29, 2019].) Section 1016.8 will read as follows:
We do not, however, rely on this legislation in making our decision. --------
"(a) The Legislature finds and declares all of the following:
"(1) The California Supreme Court held in Doe v. Harris (2013) 57 Cal.4th 64 that, as a general rule, 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. That 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.
"(2) In Boykin v. Alabama (1969) 395 U.S. 238, the United States Supreme Court held that because of the significant constitutional rights at stake in entering a guilty plea, due process requires that a defendant's guilty plea be knowing, intelligent, and voluntary.
"(3) Waiver is the voluntary, intelligent, and intentional relinquishment of a known right or privilege (Estelle v. Smith (1981) 451 U.S. 454, 471, fn. 16, quoting Johnson v. Zerbst (1938) 304 U.S. 458, 464). Waiver requires knowledge that the right exists (Taylor v. U.S. (1973) 414 U.S. 17, 19).
"(4) A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent.
"(b) A provision of a plea bargain that requires a defendant to generally waive future benefits of 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.
"(c) For purposes of this section, 'plea bargain' has the same meaning as defined in subdivision (b) of Section 1192.7." (<http://www.leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201920200AB1618> [as of Oct. 29, 2019]; italics added.)
DISPOSITION
The sentence is vacated and the matter remanded for the trial court to exercise its discretion to consider whether to strike the firearm use enhancement (§ 12022.5, subd. (a)) and to resentence defendant. If the court chooses not to strike the enhancement, it shall reinstate the sentence. The judgment is affirmed in all other respects. The court is directed to prepare an amended abstract of judgment and forward certified copies to the appropriate entities.