A defendant’s waiver of the right to appeal a stipulated sentence does not apply to a future sentencing error based on a change in the law that appellant was unaware of at the time of the entry of plea. In exchange for a stipulated 11-year prison sentence and dismissal of other counts, Wright pleaded guilty to transporting a controlled substance. He also admitted a strike prior and a prior Health and Safety Code section 11351.5 conviction that triggered the three-year enhancement under Health and Safety Code section 11370.2, subdivision (a). Under the plea agreement, Wright waived his right to appeal, including among other things, “any sentence stipulated herein.” The trial court sentenced Wright pursuant to the plea agreement. On appeal, Wright argued the three-year enhancement should be stricken based on the change in the law under SB 180, which limited the scope of the enhancement to apply only to prior convictions for a violation of Health and Safety Code section 11380. The government argued the appeal should be dismissed, based on the waiver of appellate rights. Held: Sentence vacated and matter remanded for trial court to strike enhancement and resentence Wright. A general appellate waiver includes errors that occur 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. Additionally, plea agreements are deemed to incorporate existing law and subsequent changes in the law. (Doe v. Harris (2013) 57 Cal.4th 64, 73.) “Here, nothing in Wright’s plea agreement provided or implied that it would be unaffected by subsequent changes in the law.” The court also determined that “Wright’s waiver of his right to appeal his stipulated sentence cannot be construed as applying to a sentencing error of which he had no notice when he signed the plea agreement.” To insulate a plea agreement from future changes, the parties must “specify that the consequences of the plea will remain fixed despite amendments to the relevant law.”

[Editor’s Note: Appointed counsel obtained a certificate of probable cause in this case, although counsel asserted a certificate of probable cause was not required. As a result, the Court of Appeal did not address whether a certificate of probable cause was required to raise this issue. The issue of whether a certificate of probable cause is required in a situation like this is now pending in the California Supreme Court: Is a certificate of probable cause required for a defendant to challenge a negotiated sentence based on a subsequent ameliorative, retroactive change in the law? (People v. Kelly (2019) 32 Cal.App.5th 1013, review granted 6/12/2019 (S255145/B291220); People v. Stamps (2019) 34 Cal.App.5th 117, review granted 6/12/2019 (S255843/A154091).).]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/D073038.PDF