Petitioner was not required to obtain certificate of probable cause (CPC) prior to filing a habeas petition in the superior court challenging his unlawful sentence. From 2000 to 2005, Allison pleaded no contest to multiple violent felonies in three different cases. He ultimately received an aggregate 51-year term in 2005 as part of his plea agreement in the third case. In 2017, he filed a habeas petition alleging multiple sentencing errors, which was granted (in 2015, CDCR had also written a letter to the trial court stating that Allison’s abstract of judgment could be in error or incomplete for multiple reasons). Allison was resentenced in all three cases to an aggregate 45 years, eight months. On appeal he argued the resentencing court erred. The prosecution argued the 2017 habeas order should be reversed because Allison needed a CPC to challenge his sentence and he forfeited the issue when he failed to appeal the 2005 judgment. Held: Habeas order was not void and a CPC was not required. A CPC is required to appeal from a superior court judgment after a guilty or no contest plea on grounds affecting the validity of the plea. (See Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).) The purposes of the CPC requirement, which are to weed out frivolous appeals and promote finality of judgments, relate to appellate litigation only. The failure to obtain a CPC does not prohibit a defendant from pursuing habeas relief in the superior court. Further, a trial court has no discretion to impose an illegal sentence, which may be corrected at any time. Finally, the trial court was authorized to reconsider defendant’s sentence because it received notification from CDCR of its possible illegality (Pen. Code, § 1170, subd. (d)).
The resentencing court violated California Rules of Court, rule 4.452 by changing a previously imposed concurrent term to a consecutive term. On appeal, Allison argued the resentencing court violated California Rules of Court, rule 4.452 by changing one of the terms previously imposed concurrently to a consecutive term. The prosecution argued the court should dismiss this claim for lack of jurisdiction because Allison was challenging a sentence he stipulated to in the 2005 plea agreement without first obtaining a CPC. The Court of Appeal disagreed. Generally, when a specified term is part of a plea agreement, a defendant must obtain a CPC to challenge the sentence on appeal. But a CPC is not required to challenge a trial court’s exercise of discretion that the parties reserved to it under the plea agreement. Here, the record did not prove the parties agreed to a 51-year term. Their conduct during the 2017 resentencing reflects they intended the court to exercise its discretion to impose a lawful sentence up to 51 years. Thus, no CPC was needed to challenge the trial court’s violation of rule 4.452, which prohibits a resentencing court from changing a discretionary sentencing choice made in a previous case. The 2017 resentencing court erred by ordering two counts to be served consecutively that had been ordered served concurrently in 2005.
Although Senate Bill No. 620 (SB 620) (allowing trial courts discretion to strike or dismiss a gun use enhancement) is retroactive, remand in this case would be futile. Defendant argued the appellate court should remand the matter to the trial court to allow it to consider whether to strike his gun use enhancements, pursuant to SB 620. While this January 1, 2018, change in the law is retroactive to all non-final cases, remand would be futile in the present case because defendant was sentenced for a number of violent offenses and the trial court sought the maximum lawful sentence, including the upper term on the gun use enhancements.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A153527.PDF