1

Filed 11/30/20 P. v. Fox CA1/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN K. FOX,

Defendant and Appellant.

 A153133

 (San Francisco City and County

 Super. Ct. No. SCN225583-02)

MEMORANDUM OPINION1

After his co-defendant stole a camera from two tourists in San 

Francisco, defendant Brian K. Fox shot at the tourists as he and the codefendant fled. Fox was charged with eight felony counts, including two 

counts of attempted murder, and several firearm enhancements. To resolve 

his case, he pleaded guilty to a single count of robbery, admitted to personally 

using a firearm during the offense, and agreed to be sentenced to 15 years in 

prison, including 10 years for the firearm enhancement.2 In October 2017, 

the trial court accepted the plea and sentenced Fox in accordance with it. 

1 We resolve this case by a memorandum opinion pursuant to 

California Standards of Judicial Administration, section 8.1(2).

2 Fox was convicted of robbery under Penal Code section 211, and the 

firearm enhancement was found true under Penal Code section 12022.5, 
2

On appeal, Fox originally contended that under Senate Bill No. 620 

(2017–2018 Reg. Sess.) (Senate Bill No. 620), which took effect a few months 

after he was sentenced, he was entitled to a remand not for the purpose of 

seeking to withdraw his plea but for the purpose of asking the trial court to

exercise its discretion under the new legislation to strike the firearm 

enhancement, potentially reducing his negotiated sentence by 10 years. 

Perceiving no legislative intent to authorize trial courts to reduce agreedupon sentences while otherwise permitting defendants to retain the benefits 

of their plea agreements, we concluded that he could obtain relief under the 

new legislation only if he first sought to withdraw his plea. We considered 

the appellate claim to be in effect a challenge to the validity of his plea, and 

since Fox had not obtained a certificate of probable cause to file the appeal, 

we dismissed it on May 3, 2019. (People v. Fox (2019) 34 Cal.App.5th 1124;

see also California Rules of Court, rule 8.304.)

The following month, Fox filed a petition for review in the California 

Supreme Court. The Supreme Court granted the petition and deferred 

further action pending its decision in People v. Stamps, S255843. Stamps, 

which was decided in June 2020, involved Senate Bill No. 1393 (2017–2018 

Reg. Sess.), legislation that gave trial courts discretion to strike seriousfelony enhancements. (People v. Stamps (2020) 9 Cal.5th 685, 692–693

(Stamps).) Stamps held that the defendant did not need a certificate of 

probable cause to obtain a remand for the trial court to exercise its discretion 

under the new law, which took effect after he entered a plea agreement for a 

specified term. (Id. at p. 692.) Stamps reasoned that such an appellate claim 

subdivision (a), which provides for a three-, four-, or ten-year sentence for the 

personal use of a firearm during a felony or attempted felony. All further 

statutory references are to the Penal Code.
3

“does not constitute an attack on the validity of [the] plea because the claim 

does not challenge [the] plea as defective when made.” (Id. at p. 696.)

Stamps agreed with us, however, that a defendant is not entitled to 

have the trial court “exercise its discretion to strike [an] enhancement but 

otherwise maintain [a] plea bargain” for a specified term. (Stamps, supra, 

9 Cal.5th at p. 692.) Rather, if a trial court exercises its discretion to strike 

an enhancement on remand, the prosecution is entitled to withdraw from the 

plea agreement, and the court is entitled to withdraw its approval of the 

agreement. (Id. at pp. 707–708.) Recognizing that its holding might change 

the defendant’s “calculus in seeking relief under Senate Bill 1393,” the 

Supreme Court emphasized that “it is ultimately [a] defendant’s choice” 

whether to ask a trial court to exercise its new discretion on remand. (Id. at 

p. 708.)

On October 14, 2020, the Supreme Court remanded Fox’s case to us 

with directions to vacate our prior decision and reconsider the matter in light 

of Stamps. Fox submitted supplemental briefing in which he argued that he 

is entitled to a limited remand, as set forth in Stamps, for the opportunity to 

seek relief under Senate Bill No. 620. The Attorney General did not submit 

supplemental briefing, and we agree with Fox’s proposed disposition. 

Accordingly, we vacate our decision of May 3, 2019, remand the matter 

for the limited purpose of allowing Fox to request relief under Senate Bill 

No. 620, and otherwise affirm the judgment. If Fox chooses not to request 

relief, or the trial court “declines to exercise its discretion under section 1385, 

that ends the matter and [Fox’s] sentence stands.” (Stamps, supra, 9 Cal.5th 

at p. 707.) But “if the court is inclined to exercise its discretion” in Fox’s 

favor, the prosecution will be entitled to withdraw from the plea agreement, 
4

and the court will be entitled to withdraw its approval of the plea agreement. 

(Id. at pp. 707–708.) 
5

_________________________

Humes, P.J.

We concur:

_________________________

Banke, J.

_________________________

Sanchez, J.

People v. Fox A153133