People v. Matthews

47 Cal.App.5th 857

261 Cal.Rptr.3d 266

The PEOPLE, Plaintiff and Respondent,

v.Melvin Dwayne MATTHEWS, Jr., Defendant and Appellant.

No. A157723

Court of Appeal, First District, Division 2, California.

Filed April 15, 2020

Stephanie Clarke, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Jeffrey M. Laurence, Assistant Attorneys General, René A. Chacón, Masha A. Dabiza, Deputy Attorneys General, for Plaintiff and Respondent.

STEWART, J.

Defendant Melvin Dwayne Matthews appeals from judgments issued by the Humboldt County Superior Court in three cases brought by the Humboldt County District Attorney in 2017 and/or 2018. Matthews was sentenced to a stipulated total of 10 years in state prison in a single negotiated disposition of all three cases. He contends that we should strike the four one-year terms imposed under the resulting plea agreement based on a revision to Penal Code section 667.5, subdivision (b) that eliminates such terms for all but certain prior sexual offenses, and that the other stipulated sentences imposed should remain intact, thereby reducing his total term in prison to six years. The People agree that these one-year enhancements should be stricken but argue we should remand to the trial court for resentencing so that the court may reconfigure Matthews’s overall sentence to come as close to a 10-year term as possible.

We first determine that we have jurisdiction to consider these appeals even though Matthews did not seek a certificate of probable cause for any of them. We agree that the four-one-year enhancement terms must be stricken. We further conclude that, based on the express terms of the plea agreement,¹ the court should leave the remainder of the sentences imposed intact.

BACKGROUND

The district attorney charged Matthews in the first case, number CR1702609 (Case 1), with felony grand theft ( Pen. Code, § 487, subd. (a) ),² and alleged he had suffered a prior strike conviction (§§ 667, subds. (b)-(i)) and five prior prison terms for felony convictions that subjected him to sentence enhancement provisions then called for under section 667.5, subdivision (b) ; charged Matthews in the second case, number CR1801307 (Case 2), with making criminal threats (§ 422) and misdemeanor resisting an officer (§ 148, subd. (a)(1)), and alleged additional enhancement allegations; and charged Matthews in the third case, number CR1803214 (Case 3), with the unlawful taking of a motor vehicle ( Veh. Code, § 10851, subd. (a) ), receiving stolen property—motor vehicle (§ 496d, subd. (a)) and misdemeanor resisting arrest (§ 148, subd. (a)(1)), and also alleged enhancement allegations.

In May 2019, Matthews and the prosecution entered into a plea agreement in which they stipulated to specific sentences in all three cases. Matthews filled out a change of plea form for each case in which he wrote the sentences agreed to for that case, which form also was executed by his attorney, the prosecutor and the court. In each instance, he indicated there was no sentencing decision left to the court’s discretion by not initialing the section on the form stating that his was an "open plea."

Specifically, Matthews indicated on his change of plea form for Case 1 that he would plead guilty to felony grand theft and admit the prior strike allegation, for which he would be sentenced to six years, consisting of a three-year upper term that would be doubled to six years because of the prior strike. Further, he would admit four of the five allegations that he had suffered prior prison terms, for which he would be sentenced to four one-year terms under section 667, subdivision (b). Thus, his total sentence in Case 1 would be 10 years. He also indicated that these sentences would run concurrently with the sentences in Cases 2 and 3.

As indicated on his change of plea form for Case 2, Matthews would plead guilty to resisting arrest (§ 69), for which he would be sentenced to a three-year term to run concurrently with the other cases. As indicated in his change of plea form for Case 3, Matthews would plead guilty to unlawfully taking a motor vehicle, for which he also would be sentenced to a three-year concurrent term.

The trial court found Matthews guilty of the charges to which he pleaded, found the allegations admitted true, and sentenced Matthews to the sentences the court stated were "stipulated" by the parties. Matthews timely appealed from the judgment in each case. He did not request a certificate of probable cause in any of the cases. We asked, and the parties filed, supplemental briefing, including regarding whether we have jurisdiction to consider Matthews’s appeals despite the absence of any certificates of probable cause.

DISCUSSION

Under the version of section 667.5 that governed when Matthews was sentenced, section 667.5, subdivision (b) required a one-year enhancement for each prior separate prison term served for "any felony," with an exception not applicable here. (Stats. 2018, ch. 423, § 65.) In 2019, Senate Bill No. 136 was passed.³ It changed this enhancement to apply only to a prior prison term served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b).)⁴ In other words, Senate Bill No. 136 limited the imposition of a sentence enhancement under section 667.5, subdivision (b) to prior prison terms resulting from convictions for sexually violent offenses. (Legis. Counsel’s Dig., Stats. 2019, ch. 590.) As non-urgency legislation, it went into effect on January 1, 2020. ( Gov. Code, § 9600, subd. (a) ; People v. Camba (1996) 50 Cal.App.4th 857, 865, 57 Cal.Rptr.2d 907 [" ‘ "Under the California Constitution, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment except where the statute is passed as an urgency measure and becomes effective sooner" ’ "].)

I.We Have Jurisdiction to Consider Matthews’s Appeal.

Before we address the merits of Matthews’s appeals, we address whether we have jurisdiction to consider them even though he appeals from judgments resulting from a negotiated disposition without obtaining any certificates of probable cause from the trial court.

A certificate of probable cause is required where the claim raised on appeal "is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." ( People v. Panizzon (1996) 13 Cal.4th 68, 76, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) California Rules of Court, rule 8.304(b)(4)(B) creates an exception to this requirement when an appeal is based on "grounds that arose after entry of the plea and that do not affect the validity of the plea." ( People v. French (2008) 43 Cal.4th 36, 43, 73 Cal.Rptr.3d 605, 178 P.3d 1100.)

Regarding the retroactive application of changes in the law, "the general rule in California is that a plea agreement is ‘ "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." ’ " ( Doe v. Harris (2013) 57 Cal.4th 64, 73, 158 Cal.Rptr.3d 290, 302 P.3d 598 ( Doe ); Harris v. Superior Court (2016) 1 Cal.5th 984, 990-992, 209 Cal.Rptr.3d 584, 383 P.3d 648 [prosecution cannot withdraw from plea agreement calling for specified term following retroactive application of new law reducing offense to a misdemeanor] ( Harris ).) Thus, "requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of [a] 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. To that extent, then, the terms of the plea agreement can be affected by changes in the law." ( Doe , at pp. 73-74, 158 Cal.Rptr.3d 290, 302 P.3d 598.) The Legislature acknowledged the authority of Doe in section 1016.8, subdivision (a)(1), and went further, providing, "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." (§ 1016.8, subd. (b).)

People v. Hurlic (2018) 25 Cal.App.5th 50, 235 Cal.Rptr.3d 255 ( Hurlic ) is particularly instructive. The Hurlic court reasoned that a general contract rule applied to plea agreements; that is, that future changes in law are incorporated into such agreements absent an express agreement to the contrary. ( Id. at p. 57, 235 Cal.Rptr.3d 255 ; see also People v. Shelton (2006) 37 Cal.4th 759, 767, 37 Cal.Rptr.3d 354, 125 P.3d 290 ["A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles"].) The Hurlic court also concluded the underlying purposes of the certificate of probable cause requirement—to encourage and facilitate plea agreements, and to " ‘weed out frivolous or vexatious appeals’ "—were not served by requiring the defendant to obtain a certificate in cases where the defendant’s entitlement to retroactive application of a new law was undisputed. ( Hurlic , at pp. 57-58, 235 Cal.Rptr.3d 255 ; see also People v. Baldivia (2018) 28 Cal.App.5th 1071, 1079, 239 Cal.Rptr.3d 704 [concluding, among other things, that the defendant’s claim to procedural entitlements provided by Proposition 57 was not an attack on the validity of his plea and did not require a certificate of probable cause].)

Some recent appellate courts have required certificates of probable cause in order to consider whether changes in the law applied to cases resolved by negotiated disposition. For example, in People v. Fox (2019) 34 Cal.App.5th 1124,...