Opinion
C096084
05-02-2023
THE PEOPLE, Plaintiff and Respondent, v. AARON GIVINS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. 17FE023888, 19FE017075, 20FE009634)
RENNER, J.
Defendant Aaron Ray Givins pled no contest and agreed to a term of seven years, composed of the upper term on firearm possession by a felon (Pen. Code, § 29800, subd. (a)(1)) and the upper term on a criminal street gang enhancement (§ 186.22, subd. (b)(1)). The trial court suspended the sentence and placed defendant on five years' probation. When defendant violated probation by committing additional crimes, the trial court terminated probation and lifted the suspension on the seven-year sentence. Defendant now appeals, arguing that the changes made to section 1170, subdivision (b) by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567) do not permit upper-term sentences under the circumstances of this case. We will affirm the judgment.
Further undesignated statutory references are to the Penal Code.
I. BACKGROUND
In case No. 19FE017075, defendant pled no contest to being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and admitted that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The parties agreed to a seven-year sentence composed of the upper term of three years for the firearm possession count and the upper term of four years for the gang enhancement. Execution of the sentence was suspended pending completion of five years' probation. The prosecution agreed to dismiss the other counts in the case.
Subsequently, in case No. 20FE009634, defendant pled no contest to looting (§ 463) and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The agreed-upon sentence in that case was 16 months doubled by the strike to be served concurrently with the sentence in case No. 19FE017075. In exchange, the prosecution dismissed misdemeanor charges against defendant. At the same time, defendant admitted violating probation in case No. 19FE017075. The trial court terminated probation and lifted the suspension of the seven-year sentence. The court awarded defendant 469 days' credit in case No. 19FE017075 and 204 days' credit in case No. 20FE009634.
We granted defendant's request to file a notice of appeal under the constructive filing doctrine and deemed the notice of appeal timely.
II. DISCUSSION
Defendant argues he is entitled to resentencing because of the changes introduced to section 1170, subdivision (b)(1)-(3) by Senate Bill 567. Defendant notes that the trial court did not cite any aggravating factors in imposing the upper-term sentence, stating simply that it would follow the negotiated agreement.
"Although section 1170 once granted trial courts broad discretion to choose whether to impose the lower, middle, or upper term for an offense, it now . . . favors imposition of the lower or middle term. It generally requires a court to 'order imposition of a sentence not to exceed the middle term' (§ 1170, subd. (b)(1)), and it allows a higher sentence 'only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.' (§ 1170, subd. (b)(2); but see § 1170, subd. (b)(3) [allowing a court to 'consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury'].)" (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109.)
The parties agree Senate Bill 567 applies retroactively to defendant's case under In re Estrada (1965) 63 Cal.2d 740, 744-745. Because Senate Bill 567 enacts an ameliorative change in the law by reducing the possible punishment for certain defendants, we agree with the parties that it applies retroactively here. (People v. Flores (2022) 75 Cal.App.5th 495, 500.)
The parties disagree, however, as to the effect Senate Bill 567 should have on the case. Defendant, as mentioned, argues the case should be remanded to allow defendant a new sentencing hearing that comports with the amended statute. The People respond that, because defendant stipulated to a sentence that included the upper term on both the count and the enhancement, the trial court had no discretion to impose anything other than the upper term. Thus, the amendments to section 1170, subdivision (b) do not make any difference in defendant's sentencing.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted Dec. 14, 2022, S277314) (Mitchell). In the meantime, we agree with the People for the reasons set forth in Mitchell. "[A] stipulated plea agreement 'gave the court no room to exercise discretion in the selection of a low, middle, or high term' under former section 1170, subdivision (b)." (Id. at p. 1058, quoting People v. Brooks (2020) 58 Cal.App.5th 1099, 1109.)" 'When a court accepts a plea bargain, the court must impose a sentence within the limits of that bargain. [Citation.] Thus, a court may not modify the terms of the plea agreement while otherwise leaving the agreement intact, "nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved." '" (Mitchell, supra, at pp. 1057-1058, quoting Brooks, supra, at pp. 1106-1107.) When the trial court sentenced defendant to seven years' imprisonment pursuant to the stipulated plea agreement, "[t]he court had no opportunity to exercise any discretion in deciding whether the imposition of the upper, middle, or lower term would best serve 'the interests of justice' under former section 1170, subdivision (b)." (Mitchell, supra, at p. 1058.)
"[A]mended section 1170, subdivision (b)(1) states that where an offense provides for a sentencing triad, the court 'shall, in its sound discretion, order imposition of a sentence not to exceed the middle term except as otherwise provided in paragraph (2).'" (Mitchell, supra, 83 Cal.App.5th at p. 1058, review granted.) "This language indicates that the statute was not intended to apply to sentences imposed pursuant to a stipulated plea agreement, as the trial court lack[ed] discretion to select the sentence in the first place." (Ibid.) Accordingly, there was "no occasion for the trial court to find any aggravating facts in order to justify the imposition of any upper term at sentencing." (Id. at p. 1059; see also People v. Sallee (2023) 88 Cal.App.5th 330, 338 [when "the court imposed a stipulated sentence pursuant to a negotiated plea agreement . . . the court's discretion was limited to approving or rejecting the bargain . . . [and] [t]he court did not exercise discretion to select between the lower, middle, or upper term based on any aggravating or mitigating circumstances"]; People v. Berdoll (2022) 85 Cal.App.5th 159, 164 [citing Mitchell that where defendant enters into a stipulated plea, the trial court has no occasion to find aggravating facts to justify upper term sentence]; People v. King (2020) 52 Cal.App.5th 783, 791 ["when a trial court sentences a defendant who has agreed to a stipulated sentence for a term of years, the trial court exercises no discretion to decide between an upper, middle and lower term and may not consider factors in mitigation and aggravation"]; People v. Pixley (2022) 75 Cal.App.5th 1002, 1007-1008.)
Since we conclude that the amendments to section 1170, subdivision (b)(1)-(3) do not apply to a plea bargain with a stipulated sentence, we need not address whether the remedy in People v. Stamps (2020) 9 Cal.5th 685, raised by defendant on reply, is appropriate.
III. DISPOSITION
The judgment is affirmed.
I concur: HULL, Acting P. J.
McADAM, J., Dissenting. [*]
This case is about the proper application of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567) as it amended Penal Code section 1170.Among other things, it added the presumption of state prison sentences not exceeding the middle term and the requirement that, to justify an upper term sentence, circumstances in aggravation must either be stipulated to by the defendant or found true beyond a reasonable doubt by the jury or by the court in a court trial, an exception being that prior convictions may be established based on a certified record of conviction without submission to the jury. (§ 1170, subd. (b)(1)-(3).)
Further undesignated statutory references are to the Penal Code.
On this appeal, defendant Aaron Ray Givins asserts these changes to section 1170, subdivision (b) effected by Senate Bill 567 preclude imposition of the upper term sentence. The majority rejects defendant's contention on the grounds that defendant in his plea agreement stipulated to the upper term. Under these circumstances, the reasoning goes, because section 1170, subdivision (b) contemplates sentencing in the trial court's "sound discretion," and, in sentencing defendant to a stipulated term, the trial court did not exercise any discretion at all, the requirements of section 1170, subdivision (b) are not implicated. (Maj. opn. ante, at pp. 3-4.)
This matter is a classic case of why the Legislature changed the law. The trial court knew next to nothing about the case and yet imposed an upper term sentence. There was no preliminary hearing. There was no pre-plea probation report. Then, lured by the prospect of immediate release from custody that day, defendant jumped at the prosecutor's offer of an upper term, against the advice of counsel. The only factual basis for the plea was the prosecutor reading the bare bones of the complaint. In short, there is nothing in the record even close to a stipulation to the factual basis for aggravating circumstances justifying an upper term sentence under the law as amended. The disposition of this case by way of a stipulated plea agreement to the upper term was, simply put, rushed justice. Thus, if the law as amended applies, defendant's sentence plainly does not satisfy its requirements.
Because I conclude that Senate Bill 567 applies to stipulated plea agreements and there must be a factual basis for aggravating circumstances before imposing an upper term sentence, I dissent, as further explained below.
Defendant entered a no contest plea to one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)) and a criminal street gang enhancement (§ 186.22, subd. (b)(1)). Defendant agreed to a stipulated term of seven years in prison consisting of the upper term of three years on the firearm possession count (§§ 29800, subd. (a)(1), 18, subd. (a)), and the upper term of four years on the criminal street gang enhancement (§ 186.22, subd. (b)(1)(A)). The trial court suspended the prison sentence and placed defendant on probation. However, when defendant violated probation, the trial court terminated probation and executed the previously suspended seven year prison sentence. Defendant timely appealed.
First, I agree with the parties, and my colleagues, that Senate Bill 567 "applies retroactively . . . as an ameliorative change in the law applicable to all nonfinal convictions on appeal." (People v. Flores (2022) 73 Cal.App.5th 1032, 1039, fn. omitted; accord, People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109; see generally In re Estrada (1965) 63 Cal.2d 740.) Therefore, I turn to the application of section 1170 as amended by Senate Bill 567 to the circumstances of this case.
As stated, as amended by Senate Bill 567, the presumptive term is one below the upper term. (§ 1170, subd. (b)(1) [when imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided].) The enhanced requirements for imposition of an upper term sentence (see § 1170, subd. (b)(2), (3)) ensure compliance with the principles discussed in the United States Supreme Court's decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
Under a previous iteration of California's determinate sentencing law, section 1170, former subdivision (b), stated, "that 'the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime,'" and that" '[c]ircumstances in aggravation or mitigation' are to be determined by the court after consideration of several items." (Cunningham, supra, 549 U.S. at p. 277.) In Cunningham, the Supreme Court held California's determinate sentencing law violated defendants' Sixth and Fourteenth Amendment right to a trial by a jury because it allowed a judge to find facts justifying an upper term sentence. (Id. at pp. 274, 293.) This violated the "bright-line rule" of Apprendi v. New Jersey (2000) 530 U.S. 466: "Except for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" (Cunningham, at pp. 288-289, quoting Apprendi, at p. 490.)
California's determinate sentencing law was amended later in 2007 to comply with Cunningham by affording judges broad discretion in selecting a term within a statutory range. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) After those amendments, former section 1170 provided that "the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge," and that "a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states." (Wilson, at p. 992.)
Senate Bill 567, in effect, reverted California's determinate sentencing law to something resembling the pre-Cunningham scheme, in which section 1170, former subdivision (b) "provide[d] that 'the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.'" (Cunningham, supra, 549 U.S. at p. 277, quoting § 1170, former subd. (b).) However, the changes effected by Senate Bill 567 relevant here - generally requiring that aggravating circumstances justifying upper term sentences must be stipulated to by the defendant or found true beyond a reasonable doubt by the jury or by the judge in a court trial - are designed to ensure compliance with Cunningham and Apprendi. Defendant claims he is entitled to the benefits of these requirements.
In rejecting defendant's claim, the majority relies on People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted December 14, 2022, S277314 (Mitchell). As stated ante, section 1170 contemplates the imposition of a sentence in the trial court's "sound discretion." (§ 1170, subd. (b)(1).) The Mitchell court concluded that "[a] stipulated agreement 'gave the court no room to exercise discretion in the selection of a low, middle, or high term' under former section 1170, subdivision (b)." (Mitchell, supra, 83 Cal.App.5th at p. 1058, review granted, quoting People v. Brooks (2020) 58 Cal.App.5th 1099, 1109 (Brooks).)" 'When a court accepts a plea bargain, the court must impose a sentence within the limits of that bargain. [Citation.] Thus, a court may not modify the terms of the plea agreement while otherwise leaving the agreement intact, "nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved." '" (Mitchell, at pp. 1057-1058, quoting Brooks, at pp. 1106-1107.) Thus, according to the majority, quoting Mitchell, at page 1058, when the trial court sentenced defendant pursuant to the stipulated plea agreement," '[t]he court had no opportunity to exercise any discretion in deciding whether the imposition of the upper, middle, or lower term would best serve 'the interests of justice' under former section 1170, subdivision (b).'" (Maj. opn. ante, at p. 4.) Concluding this line of reasoning, the Court of Appeal in Mitchell held this language contemplating sentencing in the exercise of the trial court's sound discretion "indicates that the statute was not intended to apply to sentences imposed pursuant to a stipulated plea agreement, as the trial court lacks the discretion to select the sentence in the first place." (Mitchell, at p. 1058.)
The majority here adopts Mitchell's reasoning and thus concludes defendant is not entitled to the benefit of the amended version of section 1170, subdivision (b). (Maj. opn. ante, at pp. 3-4.) Had defendant entered into an open plea, perhaps the majority would conclude that, because the trial court would make discretionary choices at sentencing, the changes Senate Bill 567 made to section 1170, subdivision (b) would apply. But because defendant entered into a stipulated plea, the trial court exercised no discretion at sentencing and thus those changes are not implicated. Respectfully, I disagree with Mitchell and with the majority on these points.
The Mitchell court relied heavily on Brooks, supra, 58 Cal.App.5th 1099. In Brooks, the defendant sought recall of his stipulated sentence following an amendment to section 1170.91, which mandates consideration of trauma resulting from military service as a mitigating factor where a court exercises determinate sentencing discretion. (Brooks, at pp. 1102, 1103-1104.) The amendment added a retroactivity clause to section 1170.91. (Brooks, at p. 1104.) The court in Brooks concluded, "the resentencing authority conferred by section 1170.91, subdivision (b) is inherently incompatible with the recognized finality of plea agreements to a specified term of years." (Id. at p. 1109.) The Mitchell court particularly noted that, in Brooks, the court stated that," '[w]hen a court accepts a plea bargain, the court must impose a sentence within the limits of that bargain. [Citation.] Thus, a court may not modify the terms of a plea agreement while otherwise leaving the agreement intact, "nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved."' [Citation.] Th[e] [Brooks] court further commented that a stipulated plea agreement 'gave the court no room to exercise discretion in the selection of a low, middle, or high term' under [former] section 1170, subdivision (b).'" (Mitchell, supra, 83 Cal.App.5th at pp. 1057-1058, review granted, quoting Brooks, at pp. 1107, 1109.)
Recently, in People v. Todd (2023) 88 Cal.App.5th 373 (Todd), a panel of the Sixth Appellate District disagreed with Mitchell and concluded the Mitchell court's reliance on Brooks was misplaced. (Id. at p. 378.) The Todd court noted that, unlike section 1170.91, "section 1170, subdivision (b) does not merely add additional factors to be considered among many in the trial court's sentencing determination. It prohibits the imposition of the upper-term sentence absent specific findings." (Todd, at p. 378.) Thus, "the imposition of the aggravated term exceeds the court's authority unless the statutory prerequisites are met or waived because the aggravated term cannot be imposed absent the court's finding of those circumstances." (Id. at p. 379.) I agree with the Todd court on this point.
The Todd court also discussed Mitchell's reliance on "a theory of private contractual enforcement that is free of intrusive modification by the court." (Todd, supra, 88 Cal.App.5th at p. 379, citing Mitchell, supra, 83 Cal.App.5th at pp. 1057-1058, review granted.) The Todd court stated: "we are required to reconcile the newly-enacted section 1170, subdivision (b) under the circumstances of a plea bargain with the Legislature's passage in 2019 of section 1016.8. Unlike the enforcement of civil contracts, '[t]he California Supreme Court held in Doe v. Harris (2013) 57 Cal.4th 64 that, as a general rule, plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. That the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.'" (Todd, at p. 379, quoting § 1016.8, subd. (a)(1).) "A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent." (§ 1016.8, subd. (a)(4).) Thus, the Todd court concluded: "under section 1016.8, the fact that the parties in this case entered into a plea agreement that was accepted by the sentencing court 'does not have the effect of insulating them' from these retroactive changes enacted by Senate Bill No. 567. [Citation.] We are persuaded that were we to adopt the reasoning of the court in Mitchell, we would render Todd's plea bargain to a stipulated sentence the very waiver of 'unknown future benefits of legislative enactments' that the Legislature has deemed void as against public policy because his entry of plea on those terms was not 'knowing and intelligent.'" (Todd, at pp. 379-380, citing § 1016.8, subds. (a)(4).) Again, I agree with the Todd court.
At oral argument before this court, discussing the language of section 1016.8 stating, "[t]hat the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them," the Attorney General asserted that Senate Bill 567 was not intended to apply to cases like this, involving stipulated sentences. (§ 1016.8, subd. (a)(1), italics added.) In this regard, the Attorney General asserted that "stipulated sentences have long been recognized as an exception to the requirements of section 1170, subdivision (b)." (People v. Sallee (2023) 88 Cal.App.5th 330, 340, fn. 4.) However, I agree with the Todd court that the fact the Legislature declined to limit the retroactive applicability of Senate Bill 567 "indicates its intent that the parties be bound by its amendment to the sentencing provision and honor section 1016.8." (Todd, supra, 88 Cal.App.5th at p. 380.)
As the Todd court framed the issue, "the relevant question here is not whether the sentencing judge is bound by the parties' stipulated sentence, but whether [defendant] is entitled to the ameliorative effect of Senate Bill No. 567's new sentencing provisions." (Todd, supra, 88 Cal.App.5th at p. 380.) I agree with the conclusion of the Todd court: "Todd's sentence to the aggravated term as a condition of his negotiated plea agreement does not negate the requirements imposed on the court by amended section 1170, subdivision (b), which is retroactively applicable to him. The trial court sentenced Todd to the upper term based solely on the fact that the sentence was a term of his negotiated plea agreement. It did not state on the record that it relied upon any aggravating factors when sentencing Todd to that term. Because the court's imposition of the aggravated term does not comply with the requirements of section 1170, subdivision (b), as amended by Senate Bill No. 567, remand for resentencing is not futile, as the Attorney General contends, but is necessary for the trial court to comply with the new mandates of section 1170, subdivision (b)." (Id. at p. 381.)
The court in Mitchell did not so much as mention section 1016.8, let alone conduct a meaningful analysis of its applicability and significance to these circumstances. As such, it is impossible to determine how that court would reconcile its conclusion, in effect, that defendant is bound by the terms of his pre-Senate Bill 567 plea agreement and stipulated sentence with the fact that plea bargains generally "are deemed to incorporate the reserve power of the state to amend the law or enact additional laws," and that entering into a plea agreement does not insulate the parties "from changes in the law that the Legislature has intended to apply to them." (§ 1016.8, subd. (a)(1).)
I also note that, while the Mitchell court addressed Cunningham, I disagree with its conclusion that, in circumstances such as these, "the concern raised in" Cunningham "does not exist here." (Mitchell, supra, 83 Cal.App.5th at p. 1059, review granted.) The Mitchell court's conclusion on this point was based on its determination that the court in sentencing the defendant exercised no discretion, and its conclusion that, in such circumstances, the constitutional requirements discussed in Cunningham and safeguarded by Senate Bill 567's amendments to section 1170, subdivision (b) simply do not apply. (Mitchell, at p. 1059.) However, in my view, a plea agreement, even with a stipulated term, "does not negate the requirements imposed on the court by amended section 1170, subdivision (b) ...." (Todd, supra, 88 Cal.App.5th at p. 381.) As stated, the amendments to section 1170 effected by Senate Bill 567 appear tailored to ensure compliance with the United States Supreme Court's determination in Cunningham that "placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Cunningham, supra, 549 U.S. at p. 274.) In other words, there is a constitutional mandate that sentences imposed satisfy the newly added, heightened requirements of section 1170, subdivision (b). The Mitchell court did not effectively harmonize these new requirements in section 1170, subdivision (b) as amended by Senate Bill 567 with Cunningham. And, in the short phrase specifying a sentencing court shall impose a sentence not to exceed the middle term "in its sound discretion," I do not find an exception to these constitutional safeguards for all cases involving pleas with stipulated sentences.
In short, in my view, defendant is entitled to sentencing in compliance with section 1170 as amended by Senate Bill 567. Here, in the absence of a stipulation, a finding of circumstances in aggravation beyond a reasonable doubt by the trier of fact, or evidence of prior convictions in the form of certified record of convictions, imposition of the upper term violated section 1170, subdivision (b).
Thus, I would reverse and remand to the trial court. Upon remand, the parties would be faced with choices. If the parties chose, they could retain the plea agreement. (See Todd, supra, 88 Cal.App.5th at p. 381 [as in People v. Stamps (2020) 9 Cal.5th 685, the defendant "may choose to freely and voluntarily waive the requirements of section 1170, subdivision (b)(2) and (3) and accept the plea bargain"].) If the parties agreed to retain the plea agreement, defendant could simply stipulate to a detailed factual basis for the aggravating circumstances justifying the stipulated upper term sentences contemplated by the plea agreement, thereby ensuring compliance with amended section 1170, subdivision (b) and section 1192.5 (requiring a factual basis for a plea).
Alternatively, "[s]ince under the terms of the plea agreement, no term other than the upper term may be imposed, and the trial court is not authorized to unilaterally modify the plea agreement, unless [defendant] waives the requirements of the statute, if the trial court does not find circumstances to justify the imposition of the aggravated term as outlined in amended section 1170, subdivision (b), the only remedy available to the trial court is to withdraw approval for the plea agreement and return the parties to the status quo." (Todd, at pp. 381-382, citing Stamps, at p. 707.) Thus, if defendant elected against stipulating, the parties would be restored to the circumstances as they existed prior to entering into the plea agreement, with the complaint reinstated. And, should defendant ultimately be resentenced on these counts, any sentence imposed above the middle term would have to be justified by circumstances in aggravation supported by prior convictions based on a certified record of conviction or by underlying facts that had been stipulated to by the defendant or that "ha[d] been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(1)-(3).)
For the reasons stated, I would reverse and remand for such proceedings consistent with this dissent and as may be just under the circumstances.
[*] Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.