People v. Fox CA1/1

Filed 11/30/20 P. v. Fox CA1/1 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A153133 v. BRIAN K. FOX, (San Francisco City and County Super. Ct. No. SCN225583-02) Defendant and Appellant.

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 co- defendant 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.

We resolve this case by a memorandum opinion pursuant to 1

California Standards of Judicial Administration, section 8.1(2). Fox was convicted of robbery under Penal Code section 211, and the 2

firearm enhancement was found true under Penal Code section 12022.5, 1

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 agreed- upon 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 serious- felony 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