Opinion
H043323
12-19-2019
THE PEOPLE, Plaintiff and Respondent, v. DANIEL RENE LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1526411)
Defendant Daniel Rene Lopez pleaded no contest to one count of transportation, sale, or distribution of GHB (also known as gamma hydroxybutyric acid) (Health & Saf. Code, § 11352, subd. (a); see id., § 11054, subd. (e)(3)) and one count of possessing methamphetamine for sale (§ 11378). Defendant also admitted allegations that he possessed 28.5 grams or more of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)) and had a prior drug conviction (former § 11370.2). The trial court imposed a split sentence of six years eight months, with the first four years to be served in jail and the remaining two years eight months to be served under mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
On appeal, defendant challenged a condition of his mandatory supervision that provides that his electronic devices, including his cell phones, computers, and notepads, are subject to search and forensic analysis, and that requires him to provide passcodes to conduct those searches. He contended the condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and was unconstitutionally overbroad.
On January 9, 2018, we affirmed the judgment. Upon a petition by defendant, the California Supreme Court granted review (case No. S246632) and later transferred the matter to this court with directions to vacate our decision and to reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).
We have vacated our previous decision by separate order. Having reconsidered the cause in light of Ricardo P., we find the mandatory supervision condition at issue proper.
In a petition for rehearing, defendant for the first time contends that the enhancement under former section 11370.2 for the prior drug conviction must be stricken due to a change in the law that applies retroactively to him, and that the matter should be remanded for resentencing. The Attorney General concedes that amended section 11370.2 applies to defendant but contends that his claim is barred because he failed to obtain a certificate of probable cause. For reasons that we will explain, we will reverse the judgment and remand the matter to the trial court with directions to strike the enhancement and resentence defendant.
I. FACTS & PROCEDURAL HISTORY
This case resolved before the preliminary hearing and the parties waived a full probation report. The record therefore contains limited information regarding defendant's offenses or criminal history.
A. Charges and Plea
Defendant was charged in a first amended felony complaint with four felony drug offenses: transportation, sale, or distribution of GHB (§ 11352, subd. (a); count 1); possession of GHB for sale (§ 11351; count 2); transportation, sale, or distribution of methamphetamine (§ 11379, subd. (a); count 3); and possession of methamphetamine for sale (§ 11378; count 4). The prosecution alleged that defendant possessed 28.5 grams or more of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)). At the time of the offenses, defendant was on mandatory supervision for a prior felony conviction for possessing a controlled substance for sale (§ 11378) in Santa Clara County Superior Court case No. C1242369. The first amended complaint also alleged that defendant had six prior drug convictions within the meaning of former section 11370.2, subdivision (b)—five prior convictions for possession of a controlled substance for sale (§ 11378) and one prior conviction for transportation for sale of a controlled substance (§ 11379, subd. (a))—and that defendant had served four prior prison terms (Pen. Code, § 667.5, subd. (b)).
Based on the offenses in this case, the prosecutor charged defendant with violating his mandatory supervision in case No. 1242369. Defendant admitted the violation and at sentencing in this case, the court continued his mandatory supervision in the prior case.
Pursuant to a negotiated disposition, defendant pleaded no contest to transportation, sale, or distribution of GHB (count 1) and to possession of methamphetamine for sale (count 4). Defendant also admitted he possessed 28.5 grams or more of methamphetamine and that he had one prior conviction for possession of a controlled substance for sale (§ 11378) within the meaning of former section 11370.2. Defendant entered his pleas and admission with the understanding that he would receive a sentence of six years eight months and that he would spend the first four years in jail and the last two years eight months under mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)). The parties stipulated to a factual basis for the plea and agreed that the remaining counts and enhancements would be dismissed at sentencing.
B. Sentencing Hearing
In February 2016, the trial court sentenced defendant in accordance with the plea agreement. The sentence was based on the three-year lower term for transportation, sale, or distribution of GHB (count 1); three years consecutive for the prior drug conviction enhancement (former § 11370.2); and eight months consecutive for possession of methamphetamine for sale (count 4). The trial court made other orders that are not at issue on appeal and dismissed the remaining counts and enhancements.
The probation department recommended the trial court impose several conditions of mandatory supervision, including that "defendant's computer and all other electronic devices (including but not limited to cellular telephones, laptop computers or notepads) shall be subject to Forensic Analysis search."
Defense counsel objected to the electronic devices condition, stating: "Given that there was a phone involved in this case we will not object to a search of the phone, however we do object to all electronic devices being include[d] as overly broad. There is no nexus with the underlying charge." (Italics added.) In response to an inquiry by the court, defense counsel clarified that the objection applied to computers and "[a]nything that's not a phone." (Italics added.)
The prosecutor responded that defendant would be subject to a general search condition, which "includes any and all property . . . , including electronic devices."
The trial court stated, "[I]n today's day and age everyone seems to have some kind of electronic equipment. And it seems to be reasonable that if he's using his phone, he may use emails and who knows what else is in the computer. So I think that's part of his property like everybody else. So it should be subject to search and seizure."
The trial court ordered that while on mandatory supervision, "[t]he defendant's computers, electronic devices, including but not limited to cell phones, laptop computers and notepads are subject to search and forensic analysis. And that means that the defendant must provide passcodes to conduct those searches." The trial court also imposed a general search condition, ordering defendant to "submit his person, place of residence, vehicle and all property under his control to a search at any time without the necessity of a warrant or probable cause whenever requested by any peace officer."
We shall hereafter refer to this order as the "electronic devices search condition."
II. DISCUSSION
Defendant argues the electronic devices search condition is unreasonable under Lent because it bears no relationship to his crimes and is not reasonably related to his future criminality. He contends the condition is unconstitutionally overbroad because it infringes on his right to privacy and is not reasonably related to the state's interests in his rehabilitation or public safety. Defendant urges us to remand to the trial court to narrowly tailor a condition that allows for only a cursory search of his cell phone and no other searches or forensic analysis of his electronic devices without a warrant.
Defendant additionally contends that the sentencing enhancement under former section 11370.2 for the prior drug conviction must be stricken due to a change in the law that applies retroactively to him, that no certificate of probable cause is required for him to raise this argument, and that the matter should be remanded for resentencing.
A. General Principles Regarding Mandatory Supervision
Defendant was denied probation and placed on mandatory supervision under Penal Code section 1170, subdivision (h)(5)(B). We begin by reviewing general principles regarding mandatory supervision.
When a defendant is on mandatory supervision, the defendant "shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation." (Pen. Code, § 1170, subd. (h)(5)(B).) Although mandatory supervision has been characterized as "akin to probation" (People v. Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2), courts have also observed that mandatory supervision is in some respects "more similar to parole than probation" (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1423; accord, People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez)).
"The fundamental goals of parole are ' "to help individuals reintegrate into society as constructive individuals" [citation], " 'to end criminal careers through the rehabilitation of those convicted of crime' " [citation] and to [help them] become self-supporting.' [Citation.] In furtherance of these goals, '[t]he state may impose any condition reasonably related to parole supervision.' [Citation.]" (Martinez, supra, 226 Cal.App.4th at p. 763.) Generally, the goals of probation are rehabilitation of the defendant and protection of public safety. (People v. Olguin (2008) 45 Cal.4th 375, 380; People v. Moran (2016) 1 Cal.5th 398, 402 [" 'probation [is] an act of clemency . . . , and its primary purpose is rehabilitative in nature' "].)
Mandatory supervision conditions have been analyzed "under standards analogous to the conditions or parallel to those applied to terms of parole." (Martinez, supra, 226 Cal.App.4th at p. 763.) Nonetheless, the standard for analyzing the validity and reasonableness of parole conditions is "the same standard as that developed for probation conditions." (Id. at p. 764; In re Stevens (2004) 119 Cal.App.4th 1228, 1233 ["[t]he criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole"].) In Martinez, the appellate court applied those same standards, including the Lent test, to conditions of mandatory supervision. (Martinez, supra, at p. 764; accord People v. Relkin (2016) 6 Cal.App.5th 1188, 1193-1194, 1195 [applying Lent test to mandatory supervision condition].)
We understand the Attorney General to contend that the Lent test does not apply to parole conditions, and that therefore the Lent test should not be used for assessing the reasonableness of mandatory supervision conditions. In making this argument, the Attorney General relies primarily on People v. Burgener (1986) 41 Cal.3d 505 (Burgener). Burgener, however, did not hold that the Lent test is inapplicable to parole conditions. (See id. at pp. 532-533.)
The Attorney General nevertheless contends that mandatory supervision conditions should be analyzed "without reference to the specific offender or offense," which is part of the Lent test, and instead should simply be assessed to determine whether the mandatory supervision condition "is reasonably related to fostering effective supervision." As we will next explain, however, even under the stricter (in the Attorney General's view) Lent test, the electronics search condition was properly imposed by the trial court.
B. Standards of Review
We review the reasonableness of conditions of mandatory supervision for an abuse of discretion. (Martinez, supra, 226 Cal.App.4th at p. 764.) We review constitutional challenges to conditions of mandatory supervision de novo. (Id. at p. 765.)
C. Reasonableness Under Lent
Under the Lent test, " '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality." ' [Citations.] The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1118.)
In Ricardo P., the California Supreme Court addressed whether an electronics search condition met the third prong of the Lent test, that is, whether the condition was not reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at pp. 1116, 1119.) The minor in Ricardo P. admitted two counts of felony burglary. (Id. at p. 1115.) Although there was no indication that the minor had used an electronic device in connection with the burglaries, the juvenile court imposed the condition in order to monitor the minor's compliance with separate conditions prohibiting him from using or possessing illegal drugs. (Ibid.)
The California Supreme Court determined that the condition satisfied Lent's third prong and was therefore invalid because "the burden it impose[d] on [the minor's] privacy [was] substantially disproportionate to the condition's goal of monitoring and deterring drug use." (Ricardo P., supra, 7 Cal.5th at p. 1120.) The court indicated that there must be a "closer relationship" between the probation condition and deterring future criminality (ibid), and that this relationship must be "more than just an abstract or hypothetical relationship." (Id. at p. 1121.)
The California Supreme Court clarified, however, that the third prong under Lent does not require a "nexus" between the probation condition and the underlying offense or prior offenses. (Ricardo P., supra, 7 Cal.5th at p. 1122.) The court explained that " 'conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender's precise crime' [citation] so long as they are 'reasonably directed at curbing [the defendant's] future criminality' [citation]. For example, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. [Citation.]" (Ibid.)
As an example, the California Supreme Court pointed to the validity of a condition requiring a prior narcotics offender to submit to warrantless property searches, as the condition was " 'reasonably related to the probationer's prior criminal conduct and [was] aimed at deterring or discovering subsequent criminal offenses.' " (Ricardo P., supra, 7 Cal.5th at pp. 1120-1121.) Such a condition was " 'reasonable and valid' " because it was " 'related to [the probationer's] reformation and rehabilitation in the light of the offense of which he was convicted.' [Citations.]" (Id. at p. 1121, italics omitted.)
The California Supreme Court further explained that "Lent's requirement that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [Citations.]" (Ricardo P., supra, 7 Cal.5th at p. 1122.) Regarding this proportionality requirement, the court explained that a "probationer's offense or personal history may provide the . . . court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Id. at pp. 1128-1129.)
The California Supreme Court found that such proportionality was lacking in the case before it. The court explained: "[N]othing in the record suggests that [the minor] has ever used an electronic device or social media in connection with criminal conduct. The juvenile court instead relied primarily on indications that [the minor] had previously used marijuana and its generalization that 'minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.' Based solely on these observations, the juvenile court imposed a sweeping probation condition requiring [the minor to submit all of his electronic devices and passwords to search at any time. Such a condition significantly burdens privacy interests. [Citations.]" (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.)
In this case, defendant's current offenses involved the sale and possession for sale of GHB and methamphetamine, and he admitted that he possessed 28.5 grams or more of methamphetamine. He also admitted having a prior conviction for possession for sale of a controlled substance.
At sentencing, defendant acknowledged that the instant case involved a phone, and therefore he did "not object to a search of the phone." (Italics added.) Upon clarification by the trial court, defendant indicated that he was objecting to the electronics search condition with respect to its application "to the computers" and "[a]nything that's not a phone." (Italics added.)
On appeal, to the extent defendant objects to the electronics search condition as it applies to a phone, defendant has forfeited that objection. Indeed, he expressly disclaimed any objection regarding a phone in the trial court.
Regarding the application of the condition to electronic devices other than a phone, such as a computer, the trial court in imposing the condition recognized the prevalence of electronic devices and reasoned that computers, like phones, can be used for communication such as through e-mail.
In our view, the condition requiring all of defendant's electronic devices to be subject to search is reasonably related to his future criminality. The record reflects that defendant has a prior conviction history for selling a controlled substance. His most recent offenses also involve sale or possession for sale of two different drugs, and he committed these offenses while on mandatory supervision for the prior drug conviction.
Since defendant used a cell phone to arrange a drug transaction, it was reasonable for the trial court to give the probation officer the ability to ensure that defendant was not violating his mandatory supervision by arranging additional drug sales through any electronic devices—whether a cell phone, laptop computer, or tablet. Although defendant had used a cell phone to conduct a drug deal, it was permissible for the trial court to impose a more wide-ranging electronics search condition, for " 'conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender's precise crime.' " (Ricardo P., supra, 7 Cal.5th at p. 1122.) We think the same applies to conditions of mandatory supervision. If the electronic devices search condition is limited to defendant's cell phone, he could easily circumvent the condition by using some other device, like a tablet computer or laptop, to sell narcotics using many of the same functions and applications that are on his cell phone.
In sum, allowing the probation officer to access this information will facilitate defendant's supervision and can deter future criminality by ensuring that defendant does not attempt to resume selling drugs using his electronic devices. Given his criminal history and the use of a cell phone to commit his current offenses, we conclude the electronic devices search condition was reasonably related to future criminality for this repeat offender who sells narcotics. Moreover, we believe the burden imposed by the condition in allowing a search of all of defendant's electronic devices, rather than being limited to just phones, is proportionate to the condition's goal of monitoring and deterring his drug sales. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.)
Regarding defendant's contentions on appeal that "nothing was put forth that would justify a forensic search of [his] telephone" (italics added), that only a "cursory review of cellular telephones" is permissible, and that the search of his phone or other electronic devices should be limited to certain information, defendant never objected on these grounds in the trial court. To the contrary, defendant indicated that he objected to the electronic devices search condition only as to the type of electronic devices it applied to, and that he had no objection to a forensic analysis search of his phone. Further, defendant's reliance on People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton) to support this argument is misplaced as to the analysis under Lent. In Appleton, this court found an electronics search condition valid under Lent. (Appleton, supra, at p. 724.)
For the foregoing reasons, we conclude the electronic devices search condition was reasonably related to preventing future criminality for this defendant. Since defendant cannot satisfy this third prong of the Lent test, the electronic devices search condition is reasonable and valid. We therefore shall not reach the parties' arguments regarding the first prong of the Lent test.
D. Constitutional Overbreadth Challenge
Defendant contends the electronic devices search condition is unconstitutionally overbroad because it infringes on his Fourth Amendment right to privacy and is not reasonably related to the state's interests in his rehabilitation or public safety. In the trial court, defendant objected that the condition was overbroad because it applied to devices other than his cell phone.
In the context of probation conditions, the California Supreme Court has stated that a " 'condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.)
"The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' [Citation.]" (United States v. Knights (2001) 534 U.S. 112, 118-119 (Knights).) A person's status as a probationer or parolee subject to a search condition informs both sides of that balance because probationers and parolees enjoy a lesser expectation of privacy than the general public. (Id. at p. 119 [probationer]; Samson v. California (2006) 547 U.S. 843, 850 (Samson) [parolee].)
The United States Supreme Court has "repeatedly acknowledged that a State's interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. [Citations.]" (Samson, supra, 547 U.S at p. 853.) "[T]he Fourth Amendment does not render the States powerless to address these [state] concerns effectively. [Citation.] . . . California's ability to conduct suspicionless searches of parolees serves its interest in reducing recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into productive society." (Id. at p. 854.) Balancing the defendant's privacy interests against the government's interests, the Samson court held that "the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee." (Id. at p. 857.) The question in this case is whether the government's right to conduct a suspicionless search of a person on mandatory supervision extends to data on the person's electronic devices.
Defendant relies on the United States Supreme Court's decision in Riley v. California (2014) 573 U.S. 373 (Riley) and this court's decision in Appleton. In Riley, the court held that the warrantless search of a suspect's cell phone implicated and violated the suspect's Fourth Amendment rights. (Riley, supra, at pp. 386, 401-402.) The court explained that modern cell phones, which have the capacity to be used as mini-computers, can potentially contain sensitive information about a number of areas of a person's life. (Id. at pp. 393-397.) The court emphasized, however, that its holding was only that cell phone data is subject to Fourth Amendment protection, "not that the information on a cell phone is immune from search." (Riley, supra, at p. 401.)
Riley is inapposite since it arose in a different Fourth Amendment context. Riley involved the scope of a warrantless search incident to arrest of a person who had not been convicted of a crime beyond a reasonable doubt and who was not on supervised release. (Riley, supra, 573 U.S. at pp. 378-381.) The balancing of the state's interests and the defendant's privacy interests is very different in this case, which involves the mandatory supervision of a convicted felon with a criminal history for selling narcotics. Moreover, Riley did not consider the constitutionality of conditions of probation, parole, or mandatory supervision. Persons on supervised release do not enjoy the absolute liberty to which every citizen is entitled, and the court may impose reasonable conditions that deprive an offender of some freedoms enjoyed by law-abiding citizens. (Knights, supra, 534 U.S. at p. 119 [probationers].)
This court rejected an overbreadth argument in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski), where the challenged probation conditions required the defendant to (1) " 'provide all passwords to any electronic devices, including cell phones, computers or notepads, within [the defendant's] custody or control, and submit such devices to search at any time without a warrant by any peace officer,' " and (2) " 'provide all passwords to any social media sites . . . and to submit those sites to search at any time without a warrant by any peace officer.' " (Id. at p. 1172.) The defendant in Ebertowski, a member of a criminal street gang, used social media to promote his gang. This court rejected the defendant's claim that the condition was "not narrowly tailored to [its] purpose so as to limit [its] impact on his constitutional rights to privacy, speech, and association" and concluded that the state's interest in preventing the defendant from continuing to associate with gangs and participate in gang activities, which was served by the condition, outweighed the minimal invasion of his privacy. (Id. at p. 1175.)
In Appleton, the defendant pleaded no contest to false imprisonment by means of deceit. (Appleton, supra, 245 Cal.App.4th at p. 720.) The trial court granted probation and imposed a condition making the defendant's computers and electronic devices " 'subject to forensic analysis search for material prohibited by law.' " (Id. at p. 721.) The only connection to electronic devices in Appleton was that the defendant met the minor victim on social media several months before the crime occurred. (Id. at pp. 719-720.) On appeal, the defendant challenged the search condition as both unreasonable and overbroad. (Id. at pp. 723-724.) The Appleton panel concluded that although the challenged condition was reasonable, it was unconstitutionally overbroad, and remanded to the trial court to "consider fashioning an alternative probation condition." (Id. at p. 729.) Relying on Riley, the Appleton panel held that the condition was overbroad because it "would allow for searches of vast amounts of personal information" (Appleton, supra, at p. 727) that "could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity," including "for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends" (id. at p. 725). The Appleton panel concluded that "the state's interest here—monitoring whether defendant uses social media to contact minors for unlawful purposes—could be served through narrower means," such as by imposing "the narrower condition approved in Ebertowski, whereby defendant must provide his social media accounts and passwords to his probation officer for monitoring." (Id. at p. 727, fn. omitted.)
Defendant urges us to follow Appleton and remand to the trial court to fashion a more narrowly tailored condition of mandatory supervision related to his electronic devices. Echoing themes from Riley, defendant argues that a cell phone may contain data dating far back in time and can implicate data that is not stored on the device itself that may be accessed via cloud computing. (See e.g., Riley, supra, 573 U.S. at pp. 394-395, 397.)
Here, the search condition regarding defendant's electronic devices properly serves the state's interest in preventing defendant from using electronic devices to engage in criminal activity such as the sale of narcotics. Indeed, defendant recognizes that some intrusion on his privacy rights would be justified, since he did not object below to applying the electronic devices search condition to his cell phone and, even on appeal, he does not object to having some type of search of his cell phone. Moreover, electronic information is easily transferable between devices. By allowing the search of other electronic devices, the condition ensures that defendant is not engaging in narcotics sales by the use of any electronic device. As we have stated, if the electronic devices search condition is limited to defendant's cell phone, he could easily circumvent the condition by using some other device, like a tablet computer or laptop, to sell narcotics using many of the same functions and applications that are on his cell phone, and the probation officer would not be able to effectively monitor defendant's activity while he is on mandatory supervision.
Citing In re J.B. (2015) 242 Cal.App.4th 749 (J.B.), defendant contends the electronic devices search condition is overbroad because it implicates the privacy interests of third parties. First, there is no evidence in the record to support defendant's assertion that a search of his electronic devices implicates the privacy interest of third parties. Second, defendant fails to demonstrate that he has standing to raise third party privacy interests. (Id. at p. 759 ["the minor has no standing to raise the privacy interests of third parties"].)
For these reasons, we conclude the electronic devices search condition is not overbroad.
E. Amended Health and Safety Code Section 11370 .2
Defendant contends that the three-year enhancement under former section 11370.2 should be stricken based on an amendment to that section that became effective in 2018. The Attorney General concedes that amended section 11370.2 applies to defendant but contends that his claim is barred because he failed to obtain a certificate of probable cause.
1. Retroactive application of amended section 11370.2
Effective January 1, 2018, Senate Bill No. 180 (2017-2018 Reg. Sess.) amended section 11370.2, narrowing its application. (People v. Millan (2018) 20 Cal.App.5th 450, 454 (Millan).) Under the amendment, the three-year enhancement under section 11370.2 applies only if the defendant's prior drug conviction was for a violation of section 11380. (§ 11370.2, subds. (a)-(c).) Here, defendant's prior drug conviction was for a violation of section 11378, not section 11380.
Amended section 11370.2 applies to cases that are not yet final. (Millan, supra, 20 Cal.App.5th at pp. 455-456; People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213, review granted Nov. 20, 2018, S251333.) " '[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' [Citation.]" (People v. Vieira (2005) 35 Cal.4th 264, 306.) Defendant's case is not yet final, and therefore amended section 11370.2 applies retroactively to him.
2. No certificate of probable cause is needed
The Attorney General contends that, because defendant agreed to a specific sentence of six years eight months as part of his plea, his current attempt to reduce his sentence is an attack going to the validity of the plea and requires a certificate of probable cause. Because he did not obtain a certificate, the AG argues that defendant's claim is barred.
Defendant contends that he was not required to obtain a certificate of probable cause in order to argue that an ameliorative law retroactively applies to him.
This court addressed the issue of a certificate of probable cause in the context of two other ameliorative changes in the law. In People v. Baldivia (2018) 28 Cal.App.5th 1071 (Baldivia), the defendant entered no contest pleas and admissions in exchange for an agreed prison sentence. (Id. at pp. 1073-1074.) On appeal, the defendant sought, based on recent changes in the law, a remand for a juvenile fitness hearing in juvenile court and, if he was transferred to adult criminal court, a resentencing hearing to allow the court to exercise its discretion to strike a firearm enhancement. (Id. at p. 1074.)
This court determined that the defendant was not required to obtain a certificate of probable cause. This court reasoned, based on California Supreme Court precedent, that "a plea agreement is deemed to incorporate subsequent changes in the law so long as those changes were intended by the Legislature or the electorate to apply to such a plea agreement." (Baldivia, supra, 28 Cal.App.5th at p. 1078; accord, People v. Hurlic (2018) 25 Cal.App.5th 50, 57.) Further, an " 'inference of retroactivity' is 'the ordinary presumption' " that applies "whenever there is no evidence of a legislative intent that the change be only prospective. [Citation.]" (Baldivia, supra, at p. 1079.) This court reasoned that "[i]f the electorate or the Legislature expressly or implicitly contemplated that a change in the law related to the consequences of criminal offenses would apply retroactively to all nonfinal cases, those changes logically must apply to preexisting plea agreements, since most criminal cases are resolved by plea agreements. It follows that defendant's appellate contentions were not an attack on the validity of his plea and did not require a certificate of probable cause." (Ibid.)
As the parties here observe, a split of opinion has developed among the Courts of Appeal regarding whether a defendant who entered a plea in exchange for a specified sentence must obtain a certificate of probable cause before arguing on appeal that an ameliorative law retroactively applies to potentially alter the agreed-upon sentence. The issue is currently before the California Supreme Court. (See, e.g., People v. Stamps (2019) 34 Cal.App.5th 117 [no certificate required], review granted June 12, 2019, S255843; People v. Kelly (2019) 32 Cal.App.5th 1013 [certificate required], review granted June 12, 2019, S255145; People v. Fox (2019) 34 Cal.App.5th 1124 [certificate required], review granted July 31, 2019, S256298; People v. Galindo (2019) 35 Cal.App.5th 658 [certificate required], review granted August 28, 2019, S256568.)
The Attorney General contends that this court should follow the line of cases requiring a certificate of probable cause. However, we agree with the reasoning of this court's decision in Baldivia. Specifically, since a plea agreement generally incorporates future changes in the law that the legislative body intends to apply retroactively to the parties, defendant is not attacking the validity of his plea when he argues that section 11370.2, as amended, retroactively applies to his case and requires a remand for resentencing. Therefore, no certificate of probable cause is required for defendant to raise this argument on appeal.
3. Remand for resentencing is appropriate
If this court determines that a certificate of probable cause is not required, the Attorney General concedes that the matter should be remanded to the trial court to strike the section 11370.2 enhancement and resentence defendant. We find the Attorney General's concession appropriate. We will remand the matter with directions to the trial court to strike the section 11370.2 enhancement and resentence defendant. (Millan, supra, 20 Cal.App.5th at p. 456.)
III. DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with directions to strike the Health and Safety Code section 11370.2 enhancement and to resentence defendant.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
ELIA, J.