Filed 5/2/18 P. v. Almodova CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON MICHAEL WAYNE ALMODOVA,

Defendant and Appellant.
C085357

(Super. Ct. Nos. CM044114, 16CF03430, 17CF01064)





In case No. CM044114 (case 14), defendant Brandon Michael Wayne Almodova entered a negotiated no contest plea to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in exchange for dismissal of the remaining counts and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 and a stipulated sentence of the upper term of four years in county prison. Under the plea agreement defendant was to be allowed to argue for mandatory supervision.
On March 23, 2016, in case 14, the court sentenced defendant under Penal Code section 1170, subdivision (h)(5), imposing the upper term of four years, ordering defendant to serve 365 days in local custody, and suspending execution of the remaining time, 1096 days, to be served under mandatory supervision.
A petition filed in case 14 on March 6, 2017, alleged that defendant failed to refrain from the possession of controlled substances and failed to obey all laws.
On May 18, 2017, defendant entered a plea to certain offenses and admitted certain allegations in case Nos. 16CF03430 (case 30) and 17CF01064 (case 64) in exchange for dismissal of the remaining counts and allegations with a Harvey waiver. In case 30, defendant entered a plea of no contest to possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) In case 64, defendant entered a plea of no contest to possession of heroin for sale (Health & Saf. Code, § 11351) and admitted an on-bail enhancement (Pen. Code, § 12022.1) and a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)). In entering his plea in cases 30 and 64, defendant was advised that as a consequence of his plea his maximum exposure was nine years eight months in county prison.
On May 18, 2017, defendant also agreed that his offenses in cases 30 and 64 would constitute a violation of mandatory supervision in case 14. The court took judicial notice of defendant’s plea in case 64, found defendant in violation of the terms of mandatory supervision, and revoked mandatory supervision in case 14.
On July 13, 2017, the court sentenced defendant to 10 years eight months in county prison (Pen. Code, § 1170, subd. (h)), that is, the upper term of four years in case 14, a consecutive one-third the midterm or eight months in case 30, and a consecutive one-third the midterm or one year plus two years for the on-bail enhancement and three years for the prior drug conviction in case 64.
Defendant appeals in all three cases. The court denied defendant’s request for a certificate of probable cause. (Pen. Code, § 1237.5.)
DISCUSSION
I
Limitation on the Plea Agreement
Defendant contends the trial court violated the terms of the plea agreement in sentencing him to 10 years eight months, arguing that the plea agreement limited the sentence to nine years eight months in all three cases (cases 14, 30, and 64). We reject defendant’s contention.
Initially, the People respond that defendant’s appeal should be dismissed for failure to obtain a certificate of probable cause, arguing that defendant is challenging the validity of the plea. On the merits, the People respond that the plea agreement was for cases 30 and 64, that the sentence imposed in cases 30 and 64 complied with the plea agreement, and that case 14 was not part of the plea agreement.
Defendant replies he is not attacking the validity of the plea but instead is attacking the sentence.
Penal Code section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The 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. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” Despite the language of Penal Code section 1237.5, “it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 74-75 (Panizzon).)
“The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy ‘by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.’ [Citations.]” (Panizzon, supra, 13 Cal.4th at pp. 75-76.)
In determining whether a guilty-plea appeal requires a certificate of probable cause, “ ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.]” (Panizzon, supra, 13 Cal.4th at p. 76.) Where the defendant challenges the stipulated sentence imposed, he is attacking the validity of the plea which requires a certificate of probable cause. (Id. at p. 78.) Where the defendant challenges the trial court’s legal authority to impose a sentencing lid, he is attacking the validity of the plea even though the plea agreement allowed him to argue for a lesser sentence. (People v. Shelton (2006) 37 Cal.4th 759, 766-769 (Shelton); but see People v. Buttram (2003) 30 Cal.4th 773, 785-786.) Here, defendant argues the trial court imposed a sentence greater than that provided by the plea agreement, normally a matter not requiring a certificate of probable cause.
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (Shelton, supra, 37 Cal.4th at p. 767.)
“ ‘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.” [Citation.] 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 . . . unless, of course, the parties agree.” [Citation.]’ [Citation.]” (People v. Tang (1997) 54 Cal.App.4th 669, 680.)
Defendant has misinterpreted the record. The plea agreement on May 18, 2017, was for cases 30 and 64; case 14 was not part of the plea agreement that date. The plea form specifically refers to cases 30 and 64. Case 14 is not mentioned on the plea form. In taking defendant’s plea in cases 30 and 64, the court advised defendant that as a consequence of “this plea,” he faced a maximum exposure of nine years eight months which was presumably calculated as the upper term of four years for the offense in case 64, two years for the on bail enhancement, three years for the prior drug conviction, and a consecutive one-third the midterm or eight months for the offense in case 30. The plea form does not include a bargained-for sentence to which the People agreed in cases 30 and 64. And again, case 14 was not part of the plea form. The maximum exposure stated on the plea form and referred to by the trial court in taking defendant’s plea was not a stipulated sentence or an agreed-upon sentencing lid but instead a consequence of his plea to the offenses and allegations in cases 30 and 64. We reject defendant’s contention.
II
Senate Bill No. 180
Senate Bill No. 180, signed by the Governor on October 11, 2017, became effective on January 1, 2018. The bill amends the three-year enhancement under Health and Safety Code section 11370.2 to apply only to prior convictions for violations of Health and Safety Code section 11380. (Stats. 2017, ch. 677, § 1.) Prior to the amendment, the three-year enhancement applied to many specified offenses including defendant’s prior convictions for violating Health and Safety Code sections 11378 and 11379.
“When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date. [Citation.]” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) This principle applies to “statutes governing penalty enhancements, as well as to statutes governing substantive offenses.” (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Senate Bill No. 180 does not reflect a legislative intent that it apply prospectively only.
Defendant’s judgment is not yet final. Accordingly, the three-year enhancement the trial court imposed for defendant’s prior drug conviction must be stricken. This reduction does not entitle the prosecutor to withdraw from the plea agreement. (Harris v. Superior Court (2016) 1 Cal.5th 984, 987, 990-993; Doe v. Harris (2013) 57 Cal.4th 64, 66, 71-75.)
We have resolved this issue without requesting briefing from the parties. Government Code section 68081 provides that, except for summary denial of a petition for an extraordinary writ, when we render a decision on an issue that was not proposed or briefed by any party we must either afford an opportunity for supplemental briefing or grant a timely request for a rehearing by any party. The issue we address is a question of law upon which supplemental briefing would appear unnecessary. However, any party who claims to be aggrieved may petition for rehearing.
DISPOSITION
The judgment is modified, striking the three-year enhancement imposed pursuant to Health and Safety Code section 11370.2, subdivision (a), which results in a total sentence of seven years eight months. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy of the amended abstract to the county jail. As modified, the judgment is affirmed.



HULL , J.



WE CONCUR:



RAYE , P. J.



MURRAY , J.