Filed 7/9/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DARYL GLEN HURLIC,

Defendant and Appellant.

 B286082

 (Los Angeles County

 Super. Ct. No. TA137755)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Michael Shultz, Judge. Reversed and 

remanded.

Edward Mahler, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant 

Attorney General, Steven E. Mercer, Acting Supervising Deputy 

Attorney General, Eric J. Kohm, Deputy Attorney General, for

Plaintiff and Respondent.

* * * * * *

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of Part II of the Discussion Section.

 
As a general rule, a criminal defendant who enters a guilty 

or no contest plea with an agreed-upon sentence may challenge 

that sentence on appeal only if he or she first obtains a certificate 

of probable cause from the trial court. (Pen. Code, § 1237.5, subd. 

(a);1 People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon); 

People v. Cuevas (2008) 44 Cal.4th 374, 384 (Cuevas).) Does this 

general rule apply when the defendant’s challenge to the agreedupon sentence is based on our Legislature’s enactment of a 

statute that retroactively grants a trial court the discretion to 

waive a sentencing enhancement that was mandatory at the time 

it was incorporated into the agreed-upon sentence? We conclude 

that the answer is “no,” and hold that a certificate of probable 

cause is not required in these narrow circumstances. Because we 

are unable to say that there is “no reasonable possibility” that the 

trial court would decline to exercise its newfound sentencing 

discretion, we vacate the judgment and remand for a new 

sentencing hearing to decide whether to exercise that discretion.

FACTS AND PROCEDURAL BACKGROUND

The People charged Daryl Glen Hurlic (defendant) with 

three counts of attempted premeditated murder (§§ 187, subd. (a)

& 664), and further alleged that those crimes were committed for 

the benefit of, at the direction of, and in association with a 

criminal street gang (§ 186.22, subd. (b)(1)(C), (4)) and involved a 

principal’s personal and intentional use and discharge of a 

firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)).

In March 2017, defendant accepted the People’s offer of a 

25-year prison sentence. In accepting this offer, defendant 

(1) entered a no contest plea to a single count of attempted 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2

 
murder after the People struck the premeditation allegation as to 

that count, and (2) admitted to a 20-year sentencing 

enhancement for the personal discharge of a firearm under 

section 12022.53, subdivision (c).2 Defendant did not waive his 

right to appeal.

Six months later, in September 2017, the trial court 

imposed the agreed-upon sentence of 25 years in prison and 

dismissed the remaining two counts of attempted premeditated 

murder.

On October 11, 2017, the Governor signed Senate Bill No. 

620 (2017-2018 Reg. Sess.) into law, effective January 1, 2018. 

Senate Bill No. 620 amended section 12022.53 to grant trial 

courts, for the first time, the discretion to strike section 

12022.53’s firearm enhancements. (§ 12022.53, subd. (h), as 

amended by Stats. 2017, ch. 682, § 2.)

On Halloween 2017, defendant filed a timely notice of 

appeal. He did not check the box on the first page indicating that 

his appeal “challenge[d] the validity of the plea or admission,” 

but, in the blank space where defendants are to spell out why 

they are requesting a certificate of probable cause, defendant 

wrote that he sought to avail himself of “the new Senate Bill 

620.”

No trial court issued a certificate of probable cause.

2 Although the trial court mistakenly described the 

enhancement as premised on “[u]sing a firearm and causing great 

bodily injury,” the court also repeatedly made clear that 

defendant was admitting to a 20-year enhancement under section 

12022.53, subdivision (c). Defendant does not assert that the 

court’s misstatements in any way rendered the plea involuntary.

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DISCUSSION

Defendant argues that he is entitled to ask the trial court 

to exercise its newfound discretion to strike the 20-year firearm 

enhancement. The People respond that we may not entertain 

defendant’s appeal because he did not obtain a certificate of 

probable cause and that a remand for resentencing would in any 

event be futile. The parties’ arguments accordingly present two 

questions: (1) Is a certificate of probable cause required, and 

(2) Would a remand for resentencing in this case be futile?

I. Necessity for Certificate of Probable Cause

A. Certificates of probable cause, generally

A defendant who seeks to appeal from a “judgment of 

conviction” after entering a “plea of guilty or” no contest must 

first (1) file with the trial court a sworn, written statement 

“showing reasonable constitutional, jurisdictional, or other 

grounds going to the legality of the proceedings,” and (2) obtain 

from the trial court a certificate of probable cause attesting that 

at least one of the defendant’s stated grounds “is not clearly

frivolous and vexatious.” (§ 1237.5; Cal. Rules of Court, rule 

8.304(b); People v. Holland (1978) 23 Cal.3d 77, 84, original 

italics; cf. People v. Arriaga (2014) 58 Cal.4th 950, 960 [certificate 

of probable cause not required when defendant appeals an “‘order 

made after judgment’”].)

Consistent with its purpose of “discourag[ing] and 

weed[ing] out frivolous or vexatious appeals” following a 

defendant’s voluntary entry into a plea “‘in exchange for specified

benefits such as the dismissal of other counts or an agreed’”-upon 

sentence (Panizzon, supra, 13 Cal.4th at pp. 75, 80; People 

v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson)), the certificate 

of probable cause requirement is aimed at (and consequently 

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applies to) claims that operate “in substance [as] a challenge to 

the validity of the plea” (Panizzon, at p. 76, original italics; People 

v. McNight (1985) 171 Cal.App.3d 620, 624). “[T]he crucial 

issue,” our Supreme Court has explained, “is what the defendant 

is challenging, not the time or manner in which the challenge is 

made.” (People v. Ribero (1971) 4 Cal.3d 55, 63.) In light of this 

focus, the certificate of probable cause requirement does not

apply to claims “that arose after entry of the plea and do not 

affect the plea’s validity” (Cal. Rules of Court, rule 

8.304(b)(4)(B)), such as “issues regarding” post-plea “proceedings 

held . . . for the purpose of determining the degree of the crime 

and the penalty to be imposed.” (Panizzon, at p. 74; Johnson, 

at pp. 676-677; People v. Ward (1967) 66 Cal.2d 571, 574.) Our 

Legislature has also expressly carved out appeals challenging 

search and seizure rulings. (§ 1538.5, subd. (m); Cal. Rules of 

Court, rule 8.304(b)(4)(A).)

The question presented in this case regarding the necessity 

of a certificate of probable cause lies at the intersection of two 

lines of authority. Reconciling them is a question of law we 

decide de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 182.)

The first line of authority involves the law interpreting the 

certificate of probable cause requirement in section 1237.5. This 

body of law draws a line between pleas in which the parties agree 

that the court will impose a specific, agreed-upon sentence, and 

pleas in which the parties agree that the court may impose any 

sentence at or below an agreed-upon maximum. A certificate of 

probable cause is required for the former (Cuevas, supra, 

44 Cal.4th at pp. 381-382; Panizzon, supra, 13 Cal.4th at pp. 78-

80; see generally Johnson, supra, 47 Cal.4th at p. 678), but not 

the latter (except where the defendant challenges the legal 

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validity of the maximum sentence itself) (People v. French (2008) 

43 Cal.4th 36, 45-46; People v. Buttram (2003) 30 Cal.4th 773, 

777, 790-791; cf. People v. Shelton (2006) 37 Cal.4th 759, 763 

(Shelton) [certificate of probable cause required to challenge 

validity of agreed-upon maximum sentence under section 654]). 

This differential treatment flows directly from the substance of 

the parties’ agreement: Where the parties agree to a specific 

sentence, the court’s “[a]cceptance of the agreement binds the 

court and the parties to the agreement” (People v. Segura (2008) 

44 Cal.4th 921, 930 (Segura)), and a defendant’s challenge to the 

specific sentence is “in substance a challenge to the validity of the 

plea” (Panizzon, at p. 76, original italics). But where the parties 

agree to any sentence at or beneath an agreed-upon maximum, 

that “agreement, by its nature, contemplates that the court will 

choose from among a range of permissible sentences within the 

maximum, and that abuses of this discretionary sentencing 

authority” do not attack the validity of the plea and “will be 

reviewable on appeal” without a certificate of probable cause. 

(Buttram, at pp. 790-791.) Because the parties in this case 

agreed to a specific, 25-year prison sentence, this line of authority 

suggests that appellate review is permissible only if defendant 

first obtains a certificate of probable cause.

The second line of authority involves the law governing the 

retroactivity of new criminal statutes. Although new criminal 

statutes are presumed to operate prospectively (§ 3), that 

presumption is rebuttable: Our Legislature or the voters may 

“expressly . . . declare[]” an intent to apply the new law 

retroactively (ibid.); and, absent an express indication to the 

contrary, courts will infer an intent to apply a new law 

retroactively to all nonfinal convictions where that new law 

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“mitigat[es]” or “lessens” “the punishment for a particular 

criminal offense” (People v. Brown (2012) 54 Cal.4th 314, 324; 

In re Estrada (1965) 63 Cal.2d 740, 744-745). A new law 

mitigates or lessens punishment when it either mandates 

reduction of a sentence or grants a trial court the discretion to do 

so. (People v. Francis (1969) 71 Cal.2d 66, 75-78.) Applying this 

body of law, the courts have unanimously concluded that Senate 

Bill No. 620’s grant of discretion to strike firearm enhancements 

under section 12022.53 applies retroactively to all nonfinal 

convictions. (People v. Billingsley (2018) 22 Cal.App.5th 1076, 

1079-1080 (Billingsley); People v. Arredondo (2018) 21 

Cal.App.5th 493, 506-507; People v. Watts (2018) 22 Cal.App.5th 

102, 119-120; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-

1091; People v. Robbins (2018) 19 Cal.App.5th 660, 679.) This 

line of authority suggests defendant is entitled to have the trial 

court exercise its discretion under Senate Bill No. 620.

So which line of authority prevails? We conclude that the 

authority regarding retroactivity trumps, and we do so for three 

reasons.

First, plea agreements are, at bottom, “a form of contract,” 

and their terms, like the terms of any contract, are to be enforced. 

(Shelton, supra, 37 Cal.4th at p. 767; cf. Segura, supra, 

44 Cal.4th at pp. 931-932 [court must enforce terms of plea and 

may not modify them just because one party unilaterally so 

requests].) Unless a plea agreement contains a term requiring 

the parties to apply only the law in existence at the time the 

agreement is made, however, “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 

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good and in pursuance of public policy.”’” (Doe v. Harris (2013) 

57 Cal.4th 64, 66, quoting People v. Gipson (2004) 117 

Cal.App.4th 1065, 1070.) Put differently, courts will not amend a 

plea agreement to add “‘an implied promise [that] the defendant 

will be unaffected by a change in the statutory consequences 

attending his or her conviction.’” (Harris v. Superior Court (2016) 

1 Cal.5th 984, 991, quoting Doe v. Harris, at pp. 73-74.) Because 

defendant’s plea agreement does not contain a term incorporating 

only the law in existence at the time of execution, defendant’s 

plea agreement will be “deemed to incorporate” the subsequent 

enactment of Senate Bill No. 620, and thus give defendant the 

benefit of its provisions without calling into question the validity 

of the plea.3 What is more, because Senate Bill No. 620 grants 

the trial court at most the discretion to strike the 20-year firearm 

enhancement and leaves the five-year attempted murder 

sentence intact, the trial court may end up reimposing the 

originally agreed-upon 25-year prison sentence; but even if it 

does not, a resentencing under Senate Bill No. 620 still does not 

“eviscerate[] . . . the plea bargain” in this case, and thus, the 

People may not seek to set aside the plea. (Harris v. Superior 

Court, at p. 993.)

Second, dispensing with the certificate of probable cause 

requirement in the circumstances present here better implements

the intent behind that requirement. Although the requirement is 

3 Because defendant’s plea agreement was negotiated and 

fully executed prior to Senate Bill No. 620 becoming law on 

October 11, 2017, we have no occasion to address whether a 

defendant whose plea agreement was negotiated while Senate 

Bill No. 620 was already part of the legal landscape must obtain 

a certificate of probable cause. (See People v. Enlow (1998) 

64 Cal.App.4th 850, 853-854 (Enlow).)

8

 
to be “applied in a strict manner” (People v. Mendez (1999) 

19 Cal.4th 1084, 1098), we cannot ignore its underlying purposes, 

which are: (1) to facilitate and encourage plea agreements, which 

are “‘an accepted and “integral component of the criminal justice 

system and essential to the expeditious and fair administration of 

our courts.” [Citations.]’” (Harris v. Superior Court, supra, 

1 Cal.5th at p. 992; Segura, supra, 44 Cal.4th at p. 929; Panizzon, 

supra, 13 Cal.4th at pp. 79-80); and, as noted above, (2) to “weed 

out frivolous or vexatious appeals” (Panizzon, at p. 75). If, as the 

People urge, a defendant who enters a plea of guilty or no contest 

must go through the additional step of seeking and obtaining a 

certificate of probable cause to avail himself or herself of the 

advantage of ameliorative laws like Senate Bill No. 620 that are 

otherwise indisputably applicable to him or her, the incentive to 

enter a plea—or, at a minimum, the incentive to do so 

expeditiously if legislation or voter initiative along these lines is

being contemplated—is reduced. And where, as here, the 

defendant’s entitlement to a new law’s retroactive application is 

undisputed, an appeal seeking such application is neither 

“frivolous” nor “vexatious,” thereby obviating any need for section 

1237.5’s screening mechanism.

Third, the rules of statutory construction favor application 

of Senate Bill No. 620 over section 1237.5. Where two statutes 

conflict, courts give precedence to the later-enacted statute and 

precedence to the more specific statute. (State Dept. of Public 

Health v. Superior Court (2015) 60 Cal.4th 940, 960-961.) And if 

those two rules of precedence conflict, the more specific statute 

trumps—even if it is earlier enacted. (Ibid.) In this case, Senate 

Bill No. 620 is the later-enacted statute because it was enacted in 

2017, while section 1237.5 was enacted in 1988. Senate Bill No. 

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620 is also more specific because it deals with a particular 

sentencing enhancement, whereas section 1237.5 deals more 

generally with appeals from pleas. Under these canons of 

construction, in the tug-of-war between our Legislature’s

competing intents to have a screening mechanism for appeals 

following pleas and to give defendants whose convictions are not 

yet final the benefit of a possible sentencing reduction, the latter 

intent prevails.

In resisting this conclusion, the People cite Enlow, supra, 

64 Cal.App.4th 850. In Enlow, the defendant entered a plea with 

an agreed-upon sentence calculated in part under a statute that 

dictated a temporarily elevated sentence would “sunset” to a 

lower penalty the next year. (Id. at pp. 852-853.) Enlow held on 

the merits that the defendant was not entitled to be resentenced 

under the post-“sunset” version of the statute (id. at p. 855), and 

also held that his appeal was procedurally improper because he 

did not obtain a certificate of probable cause (id. at pp. 853-854). 

Enlow is both distinguishable and unpersuasive. It 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. Senate Bill No. 620 did not become 

law until after defendant’s plea agreement was negotiated and 

executed. Enlow is also unpersuasive insofar as it does not make

any effort to reconcile section 1237.5 with the second line of 

authority involving the retroactive application of new laws 

ameliorating criminal sentences.

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For these reasons, defendant was not required to obtain a 

certificate of probable cause.

II. Futility of Remand for Resentencing 

Although Senate Bill No. 620 retroactively applies to all

defendants whose convictions are final, not all defendants are 

entitled to a remand for resentencing. A remand is required, 

however, unless the record from the initial sentencing “‘clearly 

indicate[s]’ the [trial] court would not have exercised discretion to 

strike the firearm allegations had the court known it had that 

discretion.” (Billingsley, supra, 22 Cal.App.5th at p. 1081.) Put 

differently, a remand is called for unless the trial court expressly 

and specifically speaks to how it would have hypothetically 

exercised a discretion it did not have at the time. Here, the trial 

court did not say anything about whether it might strike the

firearm enhancement, let alone clearly indicate that it would not. 

Thus, defendant is entitled to a remand.

DISPOSITION

The judgment is vacated, and the case remanded to the 

trial court to exercise its discretion whether to lessen defendant’s 

sentence pursuant to amended section 12022.53, subd. (h).

CERTIFIED FOR PARTIAL PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST

11