Filed 1/24/19 P. v. Dixon CA3

Opinion on rehearing

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

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Defendant, Thomas Michael Dixon, appeals from a judgment entered after his guilty plea to second degree murder (Pen. Code, § 187, subd. (a))[1] with a firearm enhancement (§ 12022.5, subd. (a)) and stipulation to serve a prison sentence of 19 years to life. Defendant argues the recent amendment of section 3051 extending youthful offender parole hearings to individuals who committed the controlling offense at the age of 25 or younger, entitles him to remand to the trial court for the limited purpose of determining whether he has had an adequate opportunity to present evidence relevant to that parole hearing and to present such evidence if the court determines he did not. The People agree defendant is entitled to limited remand for these purposes.

In our original opinion filed July 25, 2018, we concluded a limited remand was required, as defendant was 25 years old at the time of the controlling offense (§ 3051, subd. (a)(1), (2)(B)) and was not previously entitled to present such evidence because the prior version of section 3051 applied to individuals aged 23 or younger. (People v. Franklin (2016) 63 Cal.4th 261, 277.)

Thereafter, and presumably in response to the July 25, 2018, opinion’s footnote concerning the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), defendant filed a petition for rehearing requesting relief based upon appellate counsel’s possible ineffective assistance in failing to raise the SB 620 issue. We granted defendant’s request for rehearing, vacated our previous decision, and directed the parties to file supplemental letter briefs addressing two issues: (1) Whether this case should be reversed and remanded with instruction that the trial court exercise its discretion to strike the firearm enhancement pursuant SB 620; and (2) If SB 620 constitutes a retroactive change of the law regarding the firearm enhancement that constitutes a portion of defendant’s stipulated sentence, whether defendant is entitled - on remand - to elect whether to withdraw his plea.

We conclude remand is required to allow the trial court to exercise its discretion whether to strike the firearm enhancement (§ 12022.5, subd. (c)). We also conclude neither party is entitled to withdraw from the plea based on this change in law.

DISCUSSION

Defendant was charged with felony murder (§ 187, subd. (a)) and a firearm enhancement (personal and intentional discharge of a firearm causing great bodily injury, § 12022.53, subd. (d)), both with sentencing ranges of 25 years to life. Defendant accepted a plea agreement for a total sentence of 19 years to life. The plea agreement shows defendant would serve 15 years to life for second degree murder (§ 187, subd. (a)) and four years to life for the firearm enhancement (§ 12022.5, subd. (a)).[2] Both the written plea form and the minute order following the plea specify the parties stipulated to a sentence of 19 years to life. The probation department recommended the stipulated 19-years-to-life sentence. The plea agreement is silent on the applicability of future changes in law and there is no information in the record indicating whether the parties ever discussed the applicability of future changes in law to the plea agreement. Defendant’s later motion to withdraw his plea was denied, and defendant was sentenced to serve 19 years to life.

On October 11, 2017, the Governor signed SB 620 (2017-2018 Reg. Sess.), amending former sections 12022.5 and 12022.53, effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2), to permit a trial court to strike a firearm enhancement: “The 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).)

Now before us is whether defendant, whose judgment is not yet final on appeal, may request remand to the trial court to consider whether to strike a firearm enhancement to which he pleaded as part of an agreement for a stipulated sentence.[3]

We start with the proposition, agreed to by the parties, that SB 620 applies retroactively to nonfinal judgments. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091; see also People v. Hurlic (2018) 25 Cal.App.5th 50, 56 (Hurlic) [“the courts have unanimously concluded that [SB] 620’s (2017–2018 Reg. Sess.) grant of discretion to strike firearm enhancements under section 12022.53 applies retroactively to all nonfinal convictions”].)

The People argue the lack of information in the record concerning the applicability of future changes to the law to that plea agreement requires that defendant seek relief through a writ of habeas corpus. We disagree. The general rule is that plea agreements are deemed to incorporate future changes in law. In Doe v. Harris (2013) 57 Cal.4th 64 at page 71 (Doe), the Supreme Court stated: “[T]he general rule in California is that 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. As an adjunct to that rule, and consistent with established law holding that silence regarding a statutory consequence of a conviction does not generally translate into an implied promise the consequence will not attach, prosecutorial and judicial silence on the possibility the Legislature might amend a statutory consequence of a conviction should not ordinarily be interpreted to be an implied promise that the defendant will not be subject to the amended law.” (Italics added, fn. omitted.)

Here, the plea agreement did not include a term that defendant will not be subject to future changes in the law. Thus, the general rule applies and the plea agreement is deemed to incorporate future changes in the law, such as SB 620. (Doe, at p. 71, 73-74; Hurlic, supra, 25 Cal.App.5th at p. 57 [“Because defendant’s plea agreement does not contain a term incorporating only the law in existence at the time of execution, defendant’s plea agreement will be ‘deemed to incorporate’ the subsequent enactment of [SB] 620 . . . and thus give defendant the benefit of its provisions without calling into question the validity of the plea”].)

We conclude the trial court must be afforded the opportunity to exercise this sentencing discretion. Unlike the court in People v. Gutierrez (1996) 48 Cal.App.4th 1894 at page 1896, here, we cannot say the record shows the sentencing court clearly “indicated that it would not, in any event, have exercised its discretion to lessen the sentence.” Nothing in the trial court’s imposition of the stipulated sentence demonstrates what the court would do with this newly afforded discretion.

This brings us to the second question: If the trial court does exercise its discretion to strike the firearm enhancement, are the parties entitled to withdraw from that plea agreement? The parties agree the defendant is not entitled on remand to withdraw his plea. And defendant states he is not currently seeking to withdraw his plea. Based on our conclusion the plea agreement was subject to future changes in the law, the subsequent enactment of SB 620 does not invalidate or undo the plea agreement.

In Harris v. Superior Court (2016) 1 Cal.5th 984 at page 991-993 (Harris), the Supreme Court held the defendant was entitled to have his sentence recalled under Proposition 47 and the People were not entitled to withdraw from the plea agreement. The court’s conclusion was supported by the general rule announced in Doe, supra, 57 Cal.4th 64 that the Legislature, or the electorate, for the public good and in furtherance of public policy, and subject to the limitations imposed by the federal and state Constitutions, has the authority to modify or invalidate the terms of a plea agreement. (Harris, at p. 992.) This same reasoning applies to the Legislature’s enactment of SB 620.

The Supreme Court also distinguished the potential change in the terms of the plea bargain from the change in law in People v. Collins (1978) 21 Cal.3d 208 (Collins). In Collins, the change in law decriminalized the offense pleaded to in the plea agreement that eviscerated the judgment and the underlying plea bargain entirely. (Harris, supra, 1 Cal.5th at p. 993.) There, the court allowed the People to withdraw from the plea. Such is not the case here. Even if the trial court exercises its discretion to strike the four-year firearm enhancement, defendant is still subject to serve 15 years to life under the plea agreement.

In sum, we conclude remand is required to allow the trial court to exercise its discretion whether to strike the firearm enhancement (§ 12022.5, subd. (c)). We also conclude neither party is entitled to withdraw from the plea based on this change in law.

DISPOSITION

The matter is remanded to the trial court for the limited purpose of: (1) determining whether defendant had an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearings in fulfilling its statutory obligations under Penal Code section 3051, and if not, to afford defendant and the People the opportunity to present evidence relevant to that eventual youthful offender parole hearing; and (2) allowing the trial court to exercise its sentencing discretion and determine whether to strike defendant’s sentencing enhancement consistent with the new authority granted by Penal Code section 12022.5, subdivision (c). The judgment is otherwise affirmed.

/s/

HOCH, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

MAURO, J.