Filed 11/19/20 P. v. Espana CA6

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO ANGEL ESPANA,

Defendant and Appellant.

 H046062

 (Santa Clara County

 Super. Ct. No. C1361295)

This case is before us for the second time after the California Supreme Court 

granted review, deferred briefing, and transferred the matter back to this court with 

directions to vacate our prior decision and reconsider the cause in light of People v.

Stamps (2020) 9 Cal.5th 685 (Stamps). Defendant Ricardo Angel Espana pleaded no 

contest to attempted murder (Pen. Code, §§ 664, subd. (a), 187),1shooting at an inhabited 

dwelling (§ 246), and assault with a firearm (§ 245, subd. (a)(2)). Defendant admitted 

two firearm enhancements (§ 12022.53, subds. (a), (b)) and a prior serious felony 

conviction enhancement (§ 667, subd. (a)). On appeal, defendant argued that we should 

reverse the judgment and remand the matter back to the trial court so that it may exercise 

its discretion to dismiss his firearm or prior serious felony conviction enhancements in 

light of Senate Bill Nos. 620 and 1393. In our earlier opinion, we agreed with defendant 

and reversed and remanded the judgment with directions.

1 Unspecified statutory references are to the Penal Code.
2

We vacate our previous decision and, having reconsidered it, we again reverse and 

remand the matter back to the trial court.

BACKGROUND

1. The Crimes2

On June 13, 2013, San Jose Police Department officers responded to a drive-by 

shooting. The victim, who suffered a broken nose, chipped tooth, and a pellet through his 

right eye, told officers that he was shot by several suspects driving a black vehicle. Prior 

to the shooting, the victim heard the suspects shout “Norte.” 

That same evening, officers responded to another shooting. The victim told 

officers that he was seated in his car when suspects in a dark-colored car pulled up next 

to him and shot twice into his car. A car matching the description of the suspects’ car 

was found on a nearby freeway, and defendant was identified as the driver. Defendant 

and another man, his codefendant, were arrested following a high-speed chase. Both 

defendant and his codefendant were identified as active members of the Norteño criminal 

street gang. 

2. The Plea Agreement

On September 14, 2016, defendant completed an advisement of rights, waiver, and 

plea form. Defendant agreed to plead no contest to attempted murder (§§ 664, subd. (a), 

187), shooting at an inhabited dwelling (§ 246), and assault with a firearm (§ 245, 

subd. (a)(2)). In connection with the count of attempted murder, defendant admitted a 

firearm enhancement (§ 12022.53, subd. (b)) and a gang enhancement (§ 186.22, 

subd. (b)(1)(C)). In connection with the counts of shooting into an inhabited dwelling 

and assault with a firearm, defendant admitted a firearm enhancement (§ 12022.5, 

subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)). Defendant also admitted 

2 Since defendant pleaded no contest, we derive our summary of the offense from 

the probation officer’s report, which was based on a report prepared by the San Jose 

Police Department. 
3

he had a prior strike and a prior serious felony conviction. In exchange, defendant agreed 

to a sentence of 34 years eight months if the trial court granted his Romero3 motion, or 

35 years if the trial court did not grant his Romero motion. Defendant entered his plea 

that same day. 

3. Sentencing

On February 2, 2018, the trial court granted defendant’s Romero motion. On 

March 23, 2018, the trial court sentenced defendant to an aggregate term of 34 years 

eight months in prison. The sentence was composed of: four years for assault with a 

firearm (§ 245, subd. (a)(2)), 10 years for the gang enhancement (§ 186.22, 

subd. (b)(1)(C)), and 10 years for the firearm enhancement (§ 12022.5, subd. (a)); two 

years four months for attempted murder (§§ 664, subd. (a), 187) and three years four 

months for the gang enhancement (§ 186.22, subd. (b)(1)(C)); seven years concurrent for 

shooting at an inhabited dwelling (§ 246) and five years concurrent for the gang 

enhancement (§ 186.22, subd. (b)(1)(B)). The trial court also imposed a five-year 

sentence for defendant’s prior serious felony conviction (§ 667, subd. (a)). 

On April 16, 2018, the trial court denied defendant’s Marsden4 motion and his 

motion to withdraw his plea. 

On May 16, 2018, defendant filed a notice of appeal and request for a certificate of 

probable cause claiming that “his plea was not free and voluntary.” The trial court denied 

defendant’s request for a certificate of probable cause.

DISCUSSION

On appeal, defendant argues that we should reverse the judgment and remand the 

matter back to the trial court so that it may exercise its discretion to dismiss his firearm or 

prior serious felony conviction enhancements in light of the Legislature’s recent 

enactment of Senate Bill Nos. 620 and 1393.

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

4 People v. Marsden (1970) 2 Cal.3d 118.
4

1. Senate Bill Nos. 620 and 1393

Senate Bill No. 620, effective January 1, 2018, permits a trial court to exercise its 

discretion and strike firearm enhancements imposed under sections 12022.5 and 

12022.53. (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.) The 

statues provide that “[t]he 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).) 

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

trial courts the discretion to dismiss prior serious felony conviction enhancements 

imposed under section 667, subdivision (a). (Stats. 2018, ch. 1013, §§ 1, 2.) 

2. People v. Stamps

The defendant in Stamps entered into a plea agreement for a specified term that 

included a prior serious felony enhancement under section 667, subdivision (a). (Stamps, 

supra, 9 Cal.5th at p. 692.) The defendant was sentenced in January 2018, filed a notice 

of appeal, and requested a certificate of probable cause, which the trial court denied. (Id.

at p. 693.) On September 30, 2018, while the defendant’s appeal was still pending, the 

governor approved Senate Bill No. 1393, allowing a trial court to dismiss a serious felony 

enhancement under section 1385. (Stamps, supra, at p. 693.) On appeal, the defendant 

argued that in light of Senate Bill No. 1393, his case should be remanded to the trial court 

so that it could exercise its newfound discretion under section 1385 to strike his prior 

serious felony enhancement. (Stamps, supra, at p. 692.) The People argued that the 

defendant’s claim was not cognizable on appeal because he failed to obtain a certificate 

of probable cause. (Ibid.) The appellate court in Stamps remanded the matter back to the 

trial court after it concluded that the defendant did not need a certificate of probable to 
5

raise his arguments and that Senate Bill No. 1393 retroactively applied to him. (Stamps, 

supra, at p. 692.)

The California Supreme Court agreed with the appellate court’s conclusions that a 

certificate of probable cause was not required because the defendant was not urging that 

his plea was invalid when made. (Stamps, supra, 9 Cal.5th at pp. 694-698.) The 

“ ‘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.’ ” (Id. at p. 695, quoting Doe v. Harris (2013) 57 Cal.4th 64,

71.) The Stamps defendant was seeking relief because of an ameliorative change in the 

law, which he believed was incorporated into his plea agreement. (Stamps, supra, at 

p. 697.) Moreover, the Supreme Court agreed with the appellate court’s conclusion that 

Senate Bill No. 1393 was retroactive to judgments that were not yet final as of the date 

that the law became effective. (Stamps, supra, at p. 699; see In re Estrada (1965) 63 

Cal.2d 740.)

The California Supreme Court, however, modified the appellate court’s remand 

order. The Supreme Court noted that the Stamps defendant had entered into a negotiated 

plea agreement, and “long-standing law limits the court’s unilateral authority to strike an 

enhancement yet maintain other provisions of the plea bargain.” (Stamps, supra, 9 

Cal.5th at p. 701; § 1192.5.) The Supreme Court concluded that “[i]n order to justify a 

remand for the court to consider striking [the defendant’s] serious felony enhancement 

while maintaining the remainder of his bargain, defendant must establish not only that 

Senate Bill [No.] 1393 applies retroactively, but that, in enacting that provision, the 

Legislature intended to overturn long-standing law that a court cannot unilaterally modify 

an agreed-upon term by striking portions of it under section 1385.” (Stamps, supra, at 

p. 701.) The Supreme Court did not believe that the Legislature intended such a result. 

(Ibid.) 
6

In coming to this conclusion, the California Supreme Court distinguished Harris v.

Superior Court (2016) 1 Cal.5th 984. In Harris, the defendant pleaded to felony grand 

theft and admitted a prior robbery conviction in exchange for a negotiated prison term. 

(Id. at pp. 987-988.) After the passage of Proposition 47, which reduced certain felonies, 

including grand theft, to misdemeanors, the defendant petitioned to have his theft 

conviction resentenced as a misdemeanor. (Id. at p. 988.) The People argued that the 

reduction violated the plea agreement and sought to withdraw from the bargain. The 

Supreme Court in Harris rejected the People’s position, arguing that a plea agreement did 

not insulate the parties from changes in the law that the Legislature intended to apply to a 

plea agreement and that resentencing under Proposition 47 would prove meaningless if 

the People could respond to a successful petition by withdrawing from the agreement and 

reinstating charges. (Harris, supra, at pp. 991-992.) 

In Harris, the language of Proposition 47 “evinced an intent that these offenses be 

treated as misdemeanors no matter how or when a defendant suffered the conviction.” 

(Stamps, supra, 9 Cal.5th at p. 704.) In contrast, Stamps concluded that “[n]othing in the 

language and legislative history of Senate Bill [No.] 1393 suggests an intent to modify 

section 1192.5’s mandate that ‘the court may not proceed as to the plea other than as 

specified in the plea’ without the consent of the parties.” (Ibid.) “Unlike in Harris, the 

remedy defendant seeks, to allow the court to strike the serious felony enhancement but 

otherwise retain the plea bargain, would frustrate the Legislature’s intent to have 

section 1385 apply uniformly, regardless of the type of enhancement at issue, by granting 

the court a power it would otherwise lack for any other enhancement.” (Ibid.)

The Stamps court, however, determined that a limited remand was still 

appropriate. Stamps concluded that the defendant “should be given the opportunity to 

seek the court’s exercise of its section 1385 discretion. If the court on remand declines to 

exercise its discretion under section 1385, that ends the matter and [the] defendant’s 

sentence stands. [¶] However, if the court is inclined to exercise its discretion . . . such a 
7

determination would have consequences to the plea agreement. . . . If the court indicates 

an inclination to exercise its discretion under section 1385, the prosecution may, of 

course, agree to modify the bargain to reflect the downward departure in the sentence 

such exercise would entail. Barring such a modification agreement, ‘the prosecutor is 

entitled to the same remedy as the defendant—withdrawal of assent to the plea 

agreement . . . .’ [Citation.] [¶] Further, the court may withdraw its prior approval of the 

plea agreement.” (Stamps, supra, 9 Cal.5th at pp. 707-708.) In light of these potential 

consequences, Stamps emphasized that it was the defendant’s choice whether to seek 

relief under Senate Bill No. 1393. (Id. at p. 708.)

3. Analysis

a. Retroactivity

Defendant argues that he should be entitled to the ameliorative changes brought by 

Senate Bill Nos. 620 and 1393. We agree that both Senate Bill Nos. 620 and 1393 are 

retroactive to all cases not yet final as of the date they became effective. (People v.

Woods (2018) 19 Cal.App.5th 1080, 1089-1091 [Senate Bill No. 620 retroactive to 

nonfinal judgments]; Stamps, supra, 9 Cal.5th at p. 699 [Senate Bill No. 1393 retroactive 

to nonfinal judgments]; see In re Estrada, supra, 63 Cal.2d 740.)

b. Necessity of a Certificate of Probable Cause

Next, defendant argues that he does not need a certificate of probable cause to 

raise his appellate arguments, and we agree. In Stamps, the California Supreme Court 

determined that a defendant did not need a certificate of probable cause to argue that 

Senate Bill No. 1393 retroactively applied because the defendant was seeking relief from

an ameliorative change in the law, which was incorporated into the plea agreement. 

(Stamps, supra, 9 Cal.5th at pp. 694-698.) Although Stamps solely addresses arguments 

pertaining to the retroactivity of Senate Bill No. 1393, we find that the same logic applies 

to arguments pertaining to Senate Bill No. 620. Like Senate Bill No. 1393, which gives

trial courts the discretion to strike prior serious felony enhancements, Senate Bill No. 620 
8

is an ameliorative change in the law that gives trial courts the discretion to strike firearm 

enhancements. 

c. Appropriate Remedy

Here, defendant entered into a negotiated plea agreement which included prison 

terms for his firearm enhancements and his prior serious felony conviction. As stated in 

Stamps, it is not appropriate for us to merely remand the matter with directions to permit 

the trial court to exercise its discretion to strike the firearm enhancements and prior 

serious felony conviction enhancement while maintaining the rest of the plea agreement. 

(Stamps, supra, 9 Cal.5th at pp. 701-709.) There is no indication that the Legislature 

intended Senate Bill No. 1393 “to overturn long-standing law that a court cannot 

unilaterally modify an agreed-upon term by striking portions of it under section 1385.” 

(Stamps, supra, at p. 701.) Likewise, we have found no indication that the Legislature 

intended Senate Bill No. 620 to overturn this long-standing principle.

Thus, a limited remand, as described in Stamps, is the appropriate remedy. 

(Stamps, supra, 9 Cal.5th at p. 701.) Defendant should be permitted to have the 

opportunity to seek the trial court’s exercise of its new discretion. (Id. at p. 707.) If the 

trial court declines to exercise its discretion, defendant’s sentence shall stand. (Ibid.) If 

the trial court is inclined to exercise its discretion, the prosecution can agree to modify 

the bargain, or the prosecution may withdraw from the plea. (Ibid.) The trial court may 

also withdraw its prior approval of the plea agreement. (Id. at p. 708.) We emphasize 

that it is defendant’s choice whether he wishes to seek relief under either Senate Bill

Nos. 620 or 1393.

DISPOSITION

The judgment is reversed and remanded to allow defendant to seek relief under 

Senate Bill Nos. 620 and 1393 and for further proceedings consistent with People v.

Stamps (2020) 9 Cal.5th 685.
Premo, J.

WE CONCUR:

Greenwood, P.J.

Elia, J.

People v. Espana 

H046062