Opinion
H043958 H043888 H043890 H043891 H046477
03-20-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN PHAING, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. C1114107, C1508554, C1352311, C1524968)
I. INTRODUCTION
In January 2016, in case No. C1114107, defendant Kevin Phaing pleaded guilty to second degree murder (Pen. Code, § 187) and admitted the allegations that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)) and a principal personally and intentionally discharged a firearm proximately causing death (§ 12022.53, subd. (d)). Defendant perpetrated the offense as a juvenile, but was charged as an adult pursuant to former Welfare and Institutions Code section 707, subdivision (d)(1), which "permitted the prosecutor to charge the case directly in adult court." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) Pursuant to the terms of a negotiated plea agreement, the trial court sentenced defendant to 40 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant's three other cases were also resolved by plea. In case No. C1352311, defendant pleaded no contest to battery causing serious bodily injury (§§ 242, 243, subd. (d)) and was sentenced to probation. In case No. C1508554, defendant pleaded no contest to possession of a weapon while in a penal institution (§ 4502, subd. (a)) and was sentenced to probation. In case No. C1524968, defendant pleaded no contest to three counts of resisting or deterring a peace officer (§ 69) and was sentenced to 16 months concurrent to his sentence in the murder case.
In November 2016, the electorate passed Proposition 57, which ended the practice of prosecutors charging juveniles with crimes directly in adult court. (Lara, supra, 4 Cal.5th at pp. 303-304.) Because Proposition 57 effected "an 'ameliorative change[ ] to the criminal law,' " it applied to all cases pending at the time it was enacted, including those cases not yet final on direct appeal. (Lara, supra, at p. 309.)
Pursuant to Proposition 57, case No. C1114107 was transferred to the juvenile court. In August 2018, following a contested transfer hearing, the juvenile court granted the prosecution's motion to transfer the case back to the trial court. Upon transfer back to the trial court, the court vacated the sentence previously imposed and calendared "[the] case to be resentenced."
At the September 2018 sentencing hearing, defendant requested the trial court to exercise its newly enacted discretion to strike or dismiss the section 12022.53, subdivision (d) firearm enhancement. The trial court declined to exercise its discretion, determining that it could not do so because defendant's case had been resolved pursuant to a negotiated plea agreement.
On appeal, defendant contends that the trial court erred when it determined that it could not exercise its discretion to strike or dismiss the firearm enhancement pursuant to newly amended section 12022.53, subdivision (h).
For reasons that we will explain, we will reverse the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report in case No. C1114107. Because the issue on appeal pertains solely to case No. C1114107, we do not summarize the facts in defendant's remaining cases.
On May 25, 2011, Artemio Gonzalez Garcia was shot and killed on a street in San Jose. A witness told the police he heard "four to five pops" and then saw four to five subjects running through a nearby apartment complex.
On May 28, 2011, Vincent Le was stabbed to death. Le was a member of the criminal street gang Crips with Attitudes (CWA).
On June 14, 2011, John Nguyen was shot and killed in the yard of a residence where he had been socializing with some friends. Three other individuals were also shot and sustained nonlife-threatening injuries. The victims were affiliated with the Asian Boyz criminal street gang. An associate of one of the victims informed the police that a CWA associate had been posting threatening messages online, including " 'Fuck San Jose Asian Boyz' " and " 'RIP Vincent Tran Le.' "
A forensic comparison determined that the shell casings collected from the scenes of Garcia's and Nguyen's homicides were ejected from the same gun. Le's brother, Charles Le, told police that defendant admitted he and two accomplices were responsible for Nguyen's shooting.
During a police interview in August 2011, defendant stated that he wanted to avenge Le's death. He admitted that he had participated in a drive-by shooting under circumstances similar to Nguyen's murder, but denied involvement in Nguyen's murder.
In November 2011, the prosecution obtained a confession letter written by defendant. Defendant admitted shooting guns used in the Nguyen incident and the Garcia incident. Defendant also stated, " 'I don't care cuz I'm gang banging to the fullest. It's Crip Attitude Framily [sic] first.' "
B. Charges , Pleas , and Sentence
In 2013, in case No. C1114107, defendant was charged with conspiracy to commit murder (§§ 182, subd. (a)(1), 187), murder (§ 187), and three counts of attempted murder (§§ 664, subd. (a), 187). It was also alleged that defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that in the commission of the murder and attempted murders, a principal intentionally and personally discharged a firearm proximately causing the death of a nonaccomplice (§ 12022.53, subds. (d), (e)(1)). In January 2016, pursuant to a negotiated disposition, defendant pleaded guilty to murder and admitted the gang and firearm allegations. The trial court sentenced defendant to the agreed-upon term of 40 years to life.
In 2013, in case No. C1352311, defendant was charged with battery causing serious bodily injury (§§ 242, 243, subd. (d)). In 2016, defendant pleaded no contest to the charge and was sentenced to probation to be terminated on his release from custody.
In 2015, in case No. C1508554, defendant was charged with possession of a weapon while in a penal institution (§ 4502, subd. (a)). In 2016, defendant pleaded no contest to the charge and was sentenced to probation to be terminated on his release from custody.
Lastly, in 2015, in case No. C1524968, defendant was charged with three counts of battery on a custodial officer (§§ 242, 243, subd. (c)(1)) and three counts of resisting or deterring a custodial officer (§ 69). In 2016, defendant pleaded no contest to the counts of resisting or deterring a custodial officer and was sentenced to 16 months concurrent to his sentence in case No. C1114107.
C. Subsequent Proceedings and Changes in the Law
Defendant filed timely notices of appeal in the four superior court cases in August 2016. On November 8, 2016, the voters passed Proposition 57, which took effect the following day. (Lara, supra, 4 Cal.5th at p. 304.) On April 11, 2017, this court stayed defendant's pending appeals to permit defendant to "seek relief pursuant to Proposition 57."
The juvenile court conducted a Proposition 57 transfer hearing in case No. C1114107 in July 2018. On August 29, 2018, the juvenile court granted the prosecution's motion to transfer the case back to the trial court. The trial court then vacated the sentence previously imposed and calendared "[the] case to be resentenced."
On September 28, 2018, the trial court denied defendant's request that it exercise its discretion to strike the firearm enhancement in case No. C1114107 pursuant to newly amended section 12022.53, subdivision (h), determining that it could not do so because defendant's case had been resolved pursuant to a negotiated plea agreement. The trial court sentenced defendant to 40 years to life.
The trial court granted defendant's request for a certificate of probable cause on July 31, 2019, based on the grounds that "[t]he trial court erred in denying defendant's request to strike or reduce the firearm enhancement imposed pursuant to . . . section 12022.53 based on the court's conclusion that the plea bargained agreement left it with no authority to strike or reduce the firearm enhancement."
III. DISCUSSION
Defendant contends that the trial court erred in case No. C1114107 when it concluded that it could not exercise its newly enacted discretion to strike or dismiss the section 12022.53 firearm enhancement because the case was resolved by plea agreement where the parties agreed to a specified term. Defendant argues that the amendment to section 12022.53 applies to him retroactively despite the fact that he was sentenced in accordance with a plea agreement. The Attorney General agrees that the amendment applies retroactively to nonfinal judgments, but asserts that the amendment does not apply in cases where, as here, the defendant was sentenced to a specified term pursuant to a plea agreement.
Effective January 1, 2018, Senate Bill No. 620 (Stats. 2017, ch. 682, § 2) amended section 12022.53, subdivision (h) to give trial courts discretion to strike or dismiss a section 12022.53 firearm enhancement at sentencing in the interests of justice. Prior to the amendment, imposition of the enhancement was mandatory. (See former § 12022.53, subd. (h); Stats. 2010, ch. 711, § 5.)
Section 12022.53, subdivision (h) now provides: "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."
The parties agree that as an ameliorative change to the law, the amendment to section 12022.53 applies retroactively to cases that are not yet final on appeal. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.) However, a split of opinion has developed among the Courts of Appeal regarding the retroactive application of amended section 12022.53 to nonfinal judgments in cases resolved by plea agreements. (Compare People v. Baldivia (2018) 28 Cal.App.5th 1071, 1077-1079 (Baldivia) [concluding that because the amendment applies to all nonfinal judgments, including those in cases resolved by plea agreements for specified terms, the defendant did not need a certificate of probable cause to bring the appeal and remanding to allow the trial court to exercise its discretion to strike the section 12022.53 firearm enhancement] and People v. Hurlic (2018) 25 Cal.App.5th 50, 57-59 [same] with People v. Fox (2019) 34 Cal.App.5th 1124, 1127, 1135-1139 (Fox) [determining "that Senate Bill No. 620 applies to defendants whose judgments were not final when the law took effect, that it permits those who did not agree to serve a specific term for a firearm enhancement to seek resentencing, and that it permits those who did agree to a specific sentence to seek to withdraw from their pleas" and dismissing the appeal based on the defendant's failure to obtain a certificate of probable cause], review granted July 31, 2019, S256298.)
A similar split has developed regarding whether Senate Bill No. 1393, which amended section 667, subdivision (a) to give trial courts discretion to strike the five-year serious felony conviction enhancement, applies to defendants who were sentenced pursuant to negotiated pleas. (Compare People v. Stamps (2019) 34 Cal.App.5th 117, 120, 124, [concluding that the amendment applies in cases resolved by plea agreements], review granted Jun. 12, 2019, S255843, with People v. Galindo (2019) 35 Cal.App.5th 658, 671 [holding that Senate Bill No. 1393 does not apply to cases resolved by plea agreements because there is nothing in the bill's text or legislative history "that suggests the Legislature intended to grant trial courts discretion to reduce stipulated sentences to which the prosecution and defense have already agreed in exchange for other promises"], review granted Aug. 28, 2019, S256568; People v. Kelly (2019) 32 Cal.App.5th 1013, 1017-1018 [same], review granted Jun. 12, 2019, S255145.)
In Baldivia, a different panel of this court determined that the amendment to section 12022.53 applies retroactively to all nonfinal judgments, including cases resolved by plea agreements. (Baldivia, supra, 28 Cal.App.5th at p. 1079.) This court relied on " '[t]he general rule in California . . . that the plea agreement will be " 'deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .' " [Citation.] That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.' " (Id. at p. 1077, quoting Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe); see also Harris v. Superior Court (2016) 1 Cal.5th 984, 991 (Harris).) Parties to a plea agreement " 'are deemed to know and understand that the state, again subject to the limitations imposed by the federal and state Constitutions, may enact laws that will affect the consequences attending the conviction entered upon the plea.' " (Baldivia, supra, at p. 1078, quoting Doe, supra, at p. 70.)
The Attorney General "urge[s] the Court to reconsider" Baldivia. However, we observe that in Baldivia the Attorney General conceded retroactive application of Senate Bill No. 620 to nonfinal judgments because there was no basis for arguing an exception in cases where convictions were obtained by plea.
This court recognized in Baldivia that the changes to the laws at issue in both Doe and Harris "were expressly intended to apply retroactively." (Baldivia, supra, 28 Cal.App.5th at p. 1078.) However, this court observed that in Lara, the California Supreme Court determined that Proposition 57 applied retroactively to all nonfinal judgments "because [the proposition] did not state otherwise." (Balidivia, supra, at p. 1079.) Thus, this court concluded that because there was no indication by the Legislature that Senate Bill No. 620 was intended to operate prospectively only, and the bill "in fact expressly contemplated that it would have retroactive effect since it provided that this newly granted discretion would apply at any 'resentencing' proceeding," the amendment to section 12022.53 "logically must apply to preexisting plea agreements, since most criminal cases are resolved by plea agreements." (Baldivia, supra, at p. 1079.) Because the change to section 12022.53 applies to preexisting plea agreements, this court determined that a certificate of probable cause is not required to seek retroactive application of the amendment. (Baldivia, supra, at p. 1079.)
Although the case before us was calendared "to be resentenced" after the juvenile court transferred the matter back to the trial court, the case did not require resentencing. Rather, when a juvenile court determines after holding a transfer hearing pursuant to the retroactive application of Proposition 57 in a case where a court of criminal jurisdiction has already imposed sentence that it would have transferred the minor to a court of criminal jurisdiction, the proper remedy is to reinstate the defendant's convictions and sentence. (See Lara, supra, 4 Cal.5th at p. 310.) For this reason, we do not find that the provision in section 12022.53, subdivision (h) that authorizes the exercise of discretion to strike or dismiss the firearm enhancement at "any resentencing that may occur pursuant to any other law" applies here.
A panel of the First District Court of Appeal disagreed with Baldivia's analysis in Fox. The court determined that "the general rule that plea agreements incorporate subsequent changes in the law" (Fox, supra, 34 Cal.App.5th at p. 1135) was not pertinent for two reasons: (1) Senate Bill No. 620 was part of the legal landscape before the defendant entered his plea and his trial counsel's comments at the sentencing hearing indicated that the parties understood that the defendant would not reap the benefit of Senate Bill No. 620 when it went into effect, and (2) Senate Bill No. 620 did not express a legislative intent that the amendment would apply retroactively to defendants convicted by plea (Fox, supra, at pp. 1134-1135, 1137). "Nothing in Senate Bill No. 620 suggests that, upon becoming effective, it empowers a trial court to disregard the express terms of a plea agreement by imposing a sentence that does not reflect an agreed-upon term for a firearm enhancement. Thus, we cannot agree with [the defendant] that the new law entitles him to 'whittle down' his sentence by two-thirds, to five years, while otherwise retaining the benefits of a bargain that resulted in the dismissal of numerous other charges and allowed him to avoid a potential life sentence." (Id. at p. 1138.)
Here, unlike in Baldivia and Fox, defendant has obtained a certificate of probable cause. Thus, we are faced solely with the issue of whether the amendment to section 12022.53 applies retroactively to all nonfinal judgments, including those cases resolved by plea agreements where the parties have agreed to specified terms.
We respectfully disagree with the reasoning in Fox. When the Legislature or electorate lessens or ameliorates punishment, we must infer that it intended the new legislation to "apply to every case to which it constitutionally could apply," including "to acts committed before its passage[,] provided the judgment convicting the defendant of the act is not final." (In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada) [the Estrada inference of retroactivity].) As in Lara, where the California Supreme Court determined that Proposition 57 applies retroactively to all nonfinal judgments because the proposition effected an ameliorative change to the law and "nothing in [its] text or ballot materials rebuts [Estrada's] inference" of retroactivity (Lara, supra, 4 Cal.5th at pp. 303-304), we conclude that the amendment to section 12022.53 applies to all nonfinal judgments, including those resolved by plea agreements, because nothing in Senate Bill No. 620's text or legislative history rebuts Estrada's inference of retroactivity. Nor did the Legislature signal an intent to exempt cases resolved by plea agreements from Senate Bill No. 620's ameliorative effects. "[R]equiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction." (Doe, supra, 57 Cal.4th at pp. 73-74.)
There is no indication in the record that the parties affirmatively agreed or implicitly understood that defendant would be unaffected by a future change in the law. (See Doe, supra, 57 Cal.4th at p. 71.) Moreover, the record does not demonstrate that the trial court would not have stricken or dismissed the firearm enhancement if it had determined that it had the discretion to do so when this case was "resentenced." (Cf. People v. McDaniels (2018) 22 Cal.App.5th 420, 425 ["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"].)
For these reasons, we conclude that the amendment to section 12022.53, subdivision (h) applies to all nonfinal judgments, including cases resolved by plea agreements involving specified sentences. Accordingly, we determine that the amendment applies here. We will therefore remand the case for a resentencing hearing at which the trial court may consider whether to strike or dismiss the firearm enhancement, as now permitted by section 12022.53, subdivision (h). (See Baldivia, supra, 28 Cal.App.5th at p. 1079.) We express no opinion as to the result the trial court should reach on remand.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for the limited purpose of allowing the trial court to consider whether to exercise its newly enacted discretion to strike the Penal Code section 12022.53, subdivision (d) firearm enhancement.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
DANNER, J.