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Filed 4/9/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM STAMPS,

Defendant and Appellant.

A154091

(Alameda County

Super. Ct. No. 17CR010629)

In exchange for a stipulated nine-year sentence and the dismissal of other counts, 

defendant William Stamps plead no contest to one count of residential burglary (Pen. 

Code,1 § 459) and admitted a prior serious felony conviction (§ 667, subds. (a)(1)). The 

court sentenced defendant to the stipulated prison term, which consisted of the low term 

of two years for the burglary doubled pursuant to sections 1170.12, subdivision (c)(1) and 

667, subdivision (e)(1) and a five-year enhancement pursuant to section 667, subdivision 

(a)(1). On appeal, defendant contends the matter must be remanded so that the trial court 

may exercise its discretion to strike the five-year serious felony conviction enhancement 

pursuant to recently enacted Senate Bill No. 1393. (Legis. Counsel’s Dig., Sen. Bill No. 

1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2.) We agree and, accordingly, 

remand for a new sentencing hearing to decide whether to exercise that discretion.

 

1 All statutory references are to the Penal Code unless otherwise noted.
2

Background

Defendant was sentenced on January 10, 2018. On March 29, 2018, defendant 

timely filed a notice of appeal. His request for a certificate of probable cause was denied.2

At the time of defendant’s sentencing, the trial court did not have discretion to 

strike an enhancement imposed under section 667, subdivision (a)(1). (Pen. Code, former 

§ 1385, subd. (b); Stats. 2014, ch. 137, § 1, eff. Jan. 1, 2015 [“This section does not 

authorize a judge to strike any prior conviction of a serious felony for purposes of

enhancement of a sentence under Section 667.”].) On September 30, 2018, the Governor 

signed Senate Bill No. 1393 that, effective January 1, 2019, amended section 1385 to 

delete former subdivision (b) and give trial courts the discretion to dismiss five-year 

sentence enhancements under section 667, subdivision (a). (See Legis. Counsel’s Dig.,

Sen. Bill No. 1393 [“This bill would delete the restriction prohibiting a judge from 

striking a prior serious felony conviction in connection with imposition of [a] 5-year 

enhancement . . . .”].)

Discussion

Defendant contends that because his case is not yet final and the recent

amendment applies retroactively, the judgment should be reversed and the matter 

remanded for resentencing to allow the trial court an opportunity to exercise its discretion

to strike the enhancement. The Attorney General agrees that the Senate Bill No. 1393 

amendment applies retroactively (People v. Garcia (2018) 28 Cal.App.5th 961, 973), but 

insists that defendant is not entitled to the requested relief because his plea bargain 

 

2 Defendant requested a certificate of probable cause on the following grounds: “My base 

term was 2 years for a 1st degree burglary residential, which was a serious non-violent 

crime, where no forced entry was made. I only went into a carport garage (walk through) 

that was attached to an apartment complex. Besides the 2-year base term, I was also 

given 7 years of enhancements which made it 9 years 80%. . . . I truly believed I was 

unfairly sentenced.”
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contained a stipulated sentence of nine years and he was sentenced in conformity with the 

negotiated plea.3

Initially, the Attorney General argues that the appeal should be dismissed because 

defendant did not obtain a certificate of probable cause. (§ 1237.5.) While ordinarily the 

failure to obtain a certificate of probable cause would preclude a challenge to a negotiated 

sentence, in People v. Hurlic (2018) 25 Cal.App.5th 50 (Hurlic), the court held that the 

ordinary rule does not apply when the challenge is based on a retroactive change in the 

law. In its well-reasoned decision, the court gave three reasons for applying “the law 

governing the retroactivity of new criminal statutes” (id. at p. 56) rather than “the law 

interpreting the certificate of probable cause requirement in section 1237.5” (id. at p. 55). 

First, absent an explicit provision in a plea agreement to the contrary, the plea must be 

deemed to incorporate the subsequently enacted legislation. (Id. at p. 57.) Second, the 

purpose of the certificate of probable cause requirement is to weed out frivolous appeals

and that purpose would not be served where “the defendant’s entitlement to a new law’s 

 

3 We note briefly that there is no contention here that defendant waived his right to appeal 

the issue before us. Recent authority is in conflict as to whether a waiver of appellate 

rights that includes reference to a stipulated sentence bars relief under a postjudgment 

change of law. (Compare People v. Wright (2019) 31 Cal.App.5th 749 [plea agreement 

that includes a specified prison term and a waiver of the right to appeal the sentence did 

not waive future sentencing error based on a change in the law of which defendant was 

unaware at the time the plea was entered] with People v. Barton (2019) 32 Cal.App.5th 

1088 [plea agreement that includes a specified prison term and a waiver of the right to 

appeal the sentence precludes future challenges to the legality of the agreed-upon period 

of confinement].) In this case, however, defendant entered a general waiver of his 

appellate rights that did not preclude review of his sentence. The waiver read, “I hereby 

give up my right to appeal from this conviction, including an appeal from the denial of 

any pretrial motions.” A “waiver that is nonspecific, e.g., ‘I waive my appeal rights’ or ‘I 

waive my right to appeal any ruling in this case,’ ” is considered a general waiver. 

(People v. Panizzon (1996) 13 Cal.4th 68, 85, fn. 11.) “A broad or general waiver of 

appeal rights ordinarily includes error occurring before but not after the waiver because 

the defendant could not knowingly and intelligently waive the right to appeal any 

unforeseen or unknown future error. [Citation.] Thus, a waiver of appeal rights does not 

apply to ‘ “possible future error” [that] is outside the defendant’s contemplation and 

knowledge at the time the waiver is made.’ ” (People v. Mumm (2002) 98 Cal.App.4th 

812, 815.)
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retroactive application is undisputed” and therefore “an appeal seeking such application 

is neither ‘frivolous’ nor ‘vexatious.’ ” (Id. at p. 58.) Third, under the rules of statutory 

construction, “[w]here two statutes conflict, courts give precedence to the later-enacted 

statute and precedence to the more specific statute.” (Ibid.; see also People v. Baldivia 

(2018) 28 Cal.App.5th 1071, 1077 (Baldivia) [following Hurlic].) Contrary to the 

Attorney General’s argument, Hurlic is not based on the rationale that the defendant in 

that case did not check the box on his notice of appeal indicating he was challenging the 

validity of his plea but was seeking to avail himself of the new legislation. All of the 

reasons for the decision explained in Hurlic are fully applicable in the present case.

The Attorney General places heavy reliance on People v. Enlow (1998) 64 

Cal.App.4th 850, in which the court rejected (for failure to obtain a certificate of probable 

cause and on the merits) a defendant’s attempt to reduce an agreed upon sentence based 

on the expiration of the statute that had temporarily increased the penalty to which the 

defendant had agreed. As the Hurlic court explained, Enlow is “distinguishable because 

the statutory change in Enlow was not truly a ‘new law’; the statute’s anticipated sunset 

was already on the books (and thus part of the legal landscape) at the time the plea 

agreement was negotiated, such that the parties’ agreement to a specific sentence that did 

not account for the sunset was ‘part of the deal’ and thus his attack on that sentence went 

to the validity of the plea itself.” (Hurlic, supra, 25 Cal.App.5th at p. 58; see also 

Baldivia, supra, 28 Cal.App.5th at p. 1079 [“defendant’s appellate contentions were not 

an attack on the validity of his plea and did not require a certificate of probable cause”].)4

Like the statutory change in Hurlic, the amendment in the present case was not on the 

books or anticipated when defendant entered his plea agreement, so that his present 

appeal is not a challenge to the validity of the plea itself.

 

4 Hurlic also regarded Enlow as unpersuasive because it did “not make any effort to 

reconcile section 1237.5 with the second line of authority involving retroactive 

application of new laws ameliorating criminal sentences.” (Hurlic, supra, 25 Cal.App.5th 

at p. 59.)
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The Attorney General argues further that retroactive application of new law in this 

case would deprive the prosecution of the benefit of its plea bargain. Both Hurlic, supra, 

25 Cal.App.5th at page 57 and Baldivia, supra, 28 Cal.App.5th at pages 1077-1078 

rejected this argument. As the court explained in Hurlic, “Unless a plea agreement 

contains a term requiring the parties to apply only the law in existence at the time the 

agreement is made, . . . ‘the general rule in California is 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.’ ” ’ ” (Hurlic, supra, 25 Cal.App.5th at p. 57; Baldivia, supra,

at p. 1077, citing Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe); see also People v. 

Wright, supra, 31 Cal.App.5th at p. 755 [“Although the parties and the trial court may not 

unilaterally alter the terms of a plea bargain [citation], the Doe court concluded that 

subsequent statutory enactments or amendments may alter the terms of the plea 

bargain.”].)

In Doe, supra, 57 Cal.4th at pages 66-67, the California Supreme Court held that 

amendments to the sex offender registration law, which allowed for publication of certain 

information about registered sex offenders, could be applied to Doe, who had entered into 

a plea agreement at a time when the law prohibited such public access. The court 

explained, “[T]he parties to a plea agreement—an agreement unquestionably infused with 

a substantial public interest and subject to the plenary control of the state—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.” (Id. at p. 70.) Thereafter, in Harris v. 

Superior Court (2016) 1 Cal.5th 984, 991 (Harris), the California Supreme Court applied 

Doe to a plea agreement that had been entered into prior to the enactment of 

Proposition 47, which permitted courts to resentence prior felony convictions as 

misdemeanors. The court held that defendant was entitled to have his grand theft 

conviction resentenced as a misdemeanor and that the change in law did not permit the

prosecution to withdraw from the plea agreement and reinstate the original charges. 
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(Harris, at pp. 989-991.) The court explained, “The electorate exercised that authority in 

enacting Proposition 47. It adopted a public policy respecting the appropriate term of 

incarceration for persons convicted of certain crimes, including grand theft from the 

person. The policy applies retroactively to all persons who meet the qualifying criteria 

and are serving a prison sentence for one of those convictions, whether the conviction 

was by trial or plea. The electorate may bind the People to a unilateral change in a 

sentence without affording them the option to rescind the plea agreement. The electorate 

did so when it enacted Proposition 47.” (Harris, at p. 992.)

The court in Harris, supra, 1 Cal.5th at page 993, distinguished People v. Collins

(1978) 21 Cal.3d 208, in which the court held that when an intervening act of the 

Legislature decriminalizes the conduct for which a defendant was convicted, the state is 

substantially deprived of the benefits for which it agreed to enter the bargain and thus, it 

may restore the charges that were dismissed as part of the negotiated plea. The Harris

court explained that in Collins “we allowed the People to withdraw from a plea 

agreement before sentencing where a change in the law had decriminalized the offense to 

which the defendant had pled. The change eviscerated the judgment and the underlying 

plea bargain entirely, and it did so before the judgment. That is not the case here. Thus, 

while the rule of Doe, supra, 57 Cal.4th 64, governs this case, we believe Doe and 

Collins can be harmonized.” (Harris, supra, 1 Cal.5th at p. 993.)

Because the Senate Bill No. 1393 amendment was intended to apply retroactively, 

defendant is entitled to seek relief under the new law. (See Doe, supra, 57 Cal.4th at 

pp. 73-74 [“It follows, also as a general rule, that requiring 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. To that extent, then, 

the terms of the plea agreement can be affected by changes in the law.”]; People v. 

Wright, supra, 31 Cal.App.5th at p. 756 [“If parties to a plea agreement want to insulate 
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the agreement from future changes in the law they should specify that the consequences 

of the plea will remain fixed despite amendments to the relevant law.”].)

The Attorney General’s arguments on appeal are supported by the recent decision 

in People v. Kelly (2019) 32 Cal.App.5th 1013, in which the court considered the 

retroactive application of a new law to a stipulated sentence a “ ‘bounty in excess of that 

to which [the defendant] is entitled.’ ” (Id. at p. 1018.) We are not persuaded by Kelly 

because, among other reasons, it failed to consider the reasoning on which Hurlic is 

based,5and it failed to cite or consider Baldivia, supra, 28 Cal.App.5th 1071, Doe, supra, 

57 Cal.4th 64, or Harris, supra, 1 Cal.5th 984.

Finally, the Attorney General argues that remand for resentencing is unwarranted 

because the trial court indicated, by accepting the plea, it would not have dismissed the 

enhancement if it had the discretion to do so. (People v. Billingsley (2018) 22 

Cal.App.5th 1076, 1081 [remand is required when “the record does not ‘clearly indicate’ 

the court would not have exercised discretion to strike the firearm allegations had the 

court known it had that discretion”]; People v. McDaniels (2018) 22 Cal.App.5th 420, 

425 [remand is not required if “the record shows that the trial court clearly indicated 

when it originally sentenced the defendant that it would not in any event have stricken 

[the previously mandatory] enhancement”].) The court’s acceptance of the negotiated 

sentence, however, does not clearly establish that the court would not have exercised 

discretion to strike the enhancement if it had that discretion. 

Accordingly, we must remand for the purpose of allowing the trial court to 

consider whether to strike the section 667, subdivision (a) enhancement. In exercising its 

discretion, the trial court is not precluded from considering whether doing so would be 

incompatible with the agreement on which defendant’s plea was based. If the trial court 

strikes the enhancement, it shall resentence defendant. In selecting an appropriate 

 

5 The court in Kelly, like the Attorney General here, asserted that Hurlic is based on the 

“narrow circumstance” of the manner in which the defendant completed his notice of 

appeal. (People v. Kelly, supra, 32 Cal.App.5th at p. 1016.) As explained in text, ante,

that is not the rationale on which Hurlic is based.
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sentence, the court retains its full sentencing discretion except that it may not impose a 

term in excess of the negotiated nine years without providing defendant the opportunity 

to withdraw his plea. (People v. Wright, supra, 31 Cal.App.5th at p. 756 [“On remand the 

trial court is to resentence [defendant] in accordance with the applicable statutes and 

rules, provided that the aggregate term does not exceed the stipulated sentence.”].) If the 

trial court does not strike the enhancement, it shall reinstate the sentence.

Disposition

The judgment is reversed and the matter is remanded to permit the court to 

determine whether to strike the enhancement under Penal Code section 667, 

subdivision (a) and to resentence defendant accordingly. In all other respects the 

judgment is affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.
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Trial court: Alameda County Superior Court

Trial judge: Honorable James Cramer

Counsel for plaintiff and appellant: Xavier Becerra, Attorney General, Gerald A. Engler 

Chief Assistant Attorney General, Jeffrey M. Laurence, 

Senior Assistant Attorney General, René A. Chacón, 

Supervising Deputy Attorney General

Counsel for defendant and appellant: James S. Donnelly-Saalfield by appointment of the 

Court of Appeal

A154091