Opinion
E081737
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. CARLOS MARTINEZ, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Warren J. Williams and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB19003684 Cheryl C. Kersey, Judge. Reversed and remanded with directions.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Warren J. Williams and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS, J.
INTRODUCTION
Defendant and appellant Carlos Martinez appeals from a judgment that sentenced him to five years in state prison pursuant to a stipulated plea agreement. He challenges this sentence based on Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which amended Penal Code section 1170 to restrict a trial court's discretion to impose an upper term sentence. We reverse and remand.
All further statutory references will be to the Penal Code unless otherwise indicated.
PROCEDURAL BACKGROUND
On March 12, 2020, defendant entered a plea agreement and pled no contest to two counts of infliction of corporal injury on a spouse. (§ 273.5, subd. (a), counts 2 &5.) Pursuant to the terms of the agreement, the court sentenced him to the upper term of four years on count 2 and a consecutive one year on count 5 (one-third the middle term), for a total state prison term of five years. The court suspended the execution of the sentence and placed him on formal probation for a period of three years.
On June 8, 2021, the probation department filed a petition for revocation of probation alleging defendant failed to keep the probation officer informed of his place of residence, failed to report to the probation officer as directed, and failed to complete a domestic violence batterer's program. The court revoked defendant's probation on June 24, 2021, and issued a bench warrant. He was apprehended on March 24, 2023.
On July 14, 2023, following a formal hearing, the court found defendant in violation of his probation. The court terminated probation and imposed the previously suspended sentence. It pronounced the judgment as follows: "For Count 2, inflicting corporal injury upon a spouse, a term of four years, which is the midterm; consecutive to the midterm in Count 5, corporal injury to a spouse, one-third, so it's plus one year. The commitment to state prison is for five years."
Defendant filed a notice of appeal on July 19, 2023.
DISCUSSION
The Matter Should Be Remanded
Defendant challenges the court's imposition of the four-year upper term on count 2. First, he contends that when the court pronounced it was imposing "a term of four years, which is the midterm," it was "presumably complying with changes made in the law since [he] was placed on probation." Senate Bill 567 changed section 1170, subdivision (b), "to make the middle term the presumptive sentence for a term of imprisonment." (People v. Lopez (2022) 78 Cal.App.5th 459, 464 (Lopez), disapproved on other grounds as stated in People v. Lynch (2024) __ Cal.5th __ [Cal.LEXIS 4157 2024].) The midterm sentence for a violation of section 273.5 is three years, not four. (§ 273.5, subd. (a).) Thus, defendant stressed that the court imposed "the 'midterm'" and asserts that the abstract of judgment should be corrected to reflect a three-year midterm sentence. In the alternative, he argues his case should be remanded to the trial court for resentencing since Senate Bill 567 applies retroactively, and the court could not properly impose the upper term without making certain factual findings. The People argue that the court intended to impose the upper term of four years, pursuant to the stipulated sentence in the plea agreement, and that Senate Bill 567 does not apply to a negotiated plea agreement. The People also contend that defendant forfeited his Senate Bill 567 claim by failing to raise it below. We agree with defendant that the matter should be remanded for resentencing.
A. Forfeiture
At the outset, we note that both parties claim forfeiture. The People's position is that the court meant to impose a four-year term pursuant to the plea agreement, even though it said "the midterm" in its pronouncement, and defendant forfeited the claim that the court erred under Senate Bill 567 by imposing the upper term. Defendant's position is that the court actually meant to impose a three-year term, since that is the presumptive midterm under Senate Bill 567, and the People forfeited any claim by failing to object when the court imposed "the midterm." Because the court's pronouncement of judgment was ambiguous, since it said it was imposing "a term of four years, which is the midterm," we decline to address the issue of forfeiture. Rather, we exercise our discretion to hear the merits of the appeal. Notwithstanding any purported forfeiture, we observe that the court stated it was imposing the judgment previously withheld, which was the upper term of four years under the terms of the plea agreement. Therefore, we take the court and its word that it was imposing the judgment previously withheld of four years, and we will proceed to address the issue of whether Senate Bill 567 applies to negotiated sentences.
In so doing, we decline to address defendant's claim that the abstract of judgment should simply be amended to reflect "the correct sentence" of three years.
B. Legislative History of Senate Bill 567
At the time defendant was originally sentenced, former section 1170, subdivision (b), vested courts with broad discretion to determine whether the imposition of a low, middle, or upper-term sentence for a crime with a sentencing triad "best serve[d] the interests of justice." (Former § 1170, subd. (b).) "Prior to 2007, an older version of section 1170, subdivision (b) provided that the middle term was the presumptive term but authorized the trial court to impose the upper term if it found any aggravating circumstances." (People v. Mitchell (2022) 83 Cal.App.5th 1051, 1056 (Mitchell), review granted Dec. 14, 2022, S277314.)
"In 2007, the United States Supreme Court found this sentencing scheme unconstitutional and stated, '[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt.'" (People v. Sallee (2023) 88 Cal.App.5th 330, 337 (Sallee), review granted Apr. 26, 2023, S278690, quoting Cunningham v. California (2007) 549 U.S. 270, 281.) In response to Cunningham, "the California Legislature amended section 1170, subdivision (b) to eliminate the presumption for the middle term and to instead provide that 'the choice of the appropriate term shall rest within the sound discretion of the court.' (Stats. 2007, ch. 3, § 2, p. 5, eff. Mar. 30, 2007, as urgency legislation.) The intent of this urgency legislation was to 'maintain stability in California's criminal justice system while the criminal justice and sentencing structures in California sentencing [were] being reviewed.' (Stats. 2007, ch. 3, § 1, p. 5.) This statutory language providing trial courts broad discretion to choose within the sentencing triad remained intact until January 1, 2022."
Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b), to provide: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, 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)." (Sallee, supra, 88 Cal.App.5th at p.337, § 1170, subd. (b)(1).) Section 1170, subdivision (b)(2) in turn provides, "The court may impose a sentence exceeding the middle term 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 . . ." (Lopez, supra, 78 Cal.App.5th at p. 464.) "Thus, the legislation 'make[s] the middle term the presumptive sentence' unless aggravating circumstances admitted or proved beyond a reasonable doubt justify the upper term." (People v. Fox (2023) 90 Cal.App.5th 826, 831 (Fox).)
The People properly concede that Senate Bill 567's ameliorative amendments to section 1170, subdivision (b) apply retroactively to all cases not yet final as of January 1, 2022. (Lopez, supra, 78 Cal.App.5th at p. 465.)
C. Plea Agreements
"'A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.'" (People v. Stamps (2020) 9 Cal.5th 685, 701 (Stamps).) Unlike civil contracts, "'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.'" (People v. Todd (2023) 88 Cal.App.5th 373, 379 (Todd), review granted Apr. 26, 2023, S279154.)
"'Judicial approval is an essential condition precedent to the effectiveness of the "bargain" worked out by the defense and prosecution.'" (Stamps, supra, 9 Cal.5th at p. 705.) The trial court is "the ultimate arbiter of whether the disposition is fair and appropriate." (People v. Prudholme (2023) 14 Cal.5th 961, 970 (Prudholme).) "'"Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly."'" (Id. at p. 973.) A court is prohibited "from unilaterally modifying the terms of the bargain without affording . . . an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off." (Stamps, at p. 701.)
D. Senate Bill 567 Applies to Negotiated Sentences
The Courts of Appeal are currently split on whether Senate Bill 567's amendments apply to a negotiated sentence, and the issue is now pending before the Supreme Court. The case the People rely on, Mitchell, supra, 83 Cal.App.5th 1051, holds that the amendments to section 1170, subdivision (b) enacted by Senate Bill 567 do not apply to a stipulated sentence imposed pursuant to a plea agreement. (Mitchell, supra, 83 Cal.App.5th at pp. 1057-1059.) The Mitchell court's view is that trial courts imposing stipulated sentences by pleas have "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). Indeed, when presented with a stipulated plea agreement, a trial court may either accept or reject it." (Mitchell, at p. 1058.) Examining the language of amended section 1170, subdivision (b)(1), the Mitchell court observed that the statute provides "the trial 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, at p. 1058.) The court concluded "[t]his language indicates that the statute was not intended to apply to sentences imposed pursuant to a stipulated plea agreement, as the trial court lacks discretion to select the sentence in the first place." (Ibid.) Another court has since followed Mitchell. (See Sallee, supra, 88 Cal.App.5th at pp. 338-339.)
On the other hand, Todd, supra, 88 Cal.App.5th 373, holds that Senate Bill 567's amendments to section 1170, subdivision (b) apply retroactively to a stipulated sentence. (Todd, at pp. 377-380.) Todd relied on our Supreme Court's decision in Stamps, supra, 9 Cal.5th 685. In Stamps, the defendant, who had pled guilty in exchange for a specified term, requested that his case be remanded so the trial court could consider striking his serious felony prior conviction under newly amended section 1385, subdivision (a), which went into effect while his appeal was pending. (Stamps, at p. 692; Todd, at p. 380.) The Stamps court explained, "[a]t the time the court accepted the plea agreement and sentenced defendant, the law did not allow it to consider striking the serious felony enhancement in furtherance of justice under section 1385. Senate Bill 1393 changed the law to allow such discretion, and we have now concluded that provision applies retroactively." (Stamps, at p. 707.) Stamps determined that the defendant "should be given the opportunity to seek the court's exercise of its section 1385 discretion. If the court on remand declines to exercise its discretion under section 1385, that ends the matter and defendant's sentence stands." (Ibid.) The court in Todd followed Stamps stating, "Here, we consider a statutory amendment that proscribes the negotiated sentence agreed upon by the parties and accepted by the court absent certain conditions itemized in the new law . . . As in Stamps, Todd is entitled to remand for resentencing in compliance with amended section 1170, subdivision (b)." (Todd, at pp. 380-381.)
Another court has since followed Todd, while disagreeing with Mitchell. (See Fox, supra, 90 Cal.App.5th 826.) In Fox, the court agreed with Todd that the Supreme Court's decision in Stamps compelled the conclusion that the defendant was entitled to the benefit of Senate Bill 567: "As Stamps explained, the fact that a defendant agreed to a specific term prevents a trial court from striking a prior-serious-felony enhancement while imposing the balance of a stipulated sentence, but it does not prevent the court from striking the enhancement and permitting the prosecution to withdraw from the plea agreement. [Citation.] This is because a trial court's 'exercise of its new discretion to strike the serious felony enhancement, whether considered a new circumstance in the case or simply a reevaluation of the propriety of the bargain itself, would fall within the court's broad discretion to withdraw its prior approval of the plea agreement.'" (Fox, at pp. 833-834.) Fox emphasized that remand is even more appropriate in the present context than it was in Stamps, because regardless of whether the trial court exercised its discretion in Stamps, the resulting sentence would be legal, whereas "under Senate Bill No. 567 an upper-term sentence is not even authorized unless aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt." (Fox., at p. 834.)
We note that both parties discuss Prudholme, supra, 14 Cal.5th 961, which arguably charts a third path. In that case, our Supreme Court considered whether and how recent changes to the law capping the maximum probation term for many crimes applied to nonfinal pleas. Rather than follow Stamps, the court in Prudholme held that remand was not necessary, the People should not be given an opportunity to withdraw from the plea deal, and the appropriate remedy was to unilaterally reduce the pled for sentence to match the new maximum probation term. (Prudholme, supra, 14 Cal.5th at p. 978.) The court held that adopting Stamps would undermine the legislative goals of the statute, which intended to reduce probation lengths across the board and reduce incarceration for probation violations because "if the bargained-for statutory probation term is now considered insufficient, the People's only recourse would be to require a plea to a more serious offense, making Assembly Bill [No.] 1950's two-year probation limit inapplicable, or to seek a prison term. It seems doubtful the Legislature intended that its ameliorative action would transform plea bargains for probationary terms into dispositions calling for admission of a more serious offense or a state prison sentence." (Id. at p. 977.) Prudholme also held that "[r]educing defendant's probationary term from three to two years here would not so 'fundamentally alter[] the character of the bargain' that the People should have an opportunity to withdraw from the plea agreement." (Id. at p. 978.) Ultimately, the Prudholme court held the proper remedy was "to modify the judgment to reflect the new probationary term of two years." (Id. at p. 979.)
The People argue that Prudholme is distinguishable, stressing that it concerned "the rehabilitative [and nonpunitive] nature of probation" rather than punishment. However, defendant does not rely on Prudholme to argue that we should apply the benefit of Senate Bill 567 by unilaterally modifying the agreement. Rather, he also distinguishes Prudholme, pointing out that "the bill in Prudholme was an across-the-board reduction that applied equally to all defendants regardless of the facts of their underlying offense," whereas Senate Bill 567 "did not automatically reduce the possible length of confinement for a class of crimes. Instead, it required the People prove certain aggravating facts to impose the harshest possible sentence." Thus, defendant simply relies on Prudholme to state that, "[g]enerally, Prudholme advised that courts facing similar contests between ameliorative sentencing changes and section 1192.5's prohibition on modifying plea agreements should look to the Legislature's intent in passing the ameliorative law and effect that intent." (See Prudholme, supra, 14 Cal.5th at pp. 975-976.) He concludes that, "[u]nder Prudholme, the remedy outlined in Stamps is appropriate here."
We are persuaded by the reasoning in Todd and Fox, respectfully unpersuaded by Mitchell and Sallee, and conclude under Prudholme's guidance that the remedy outlined in Stamps is appropriate here. (See post.) Neither Mitchell nor Sallee address Stamps, which is "the leading authority on what relief is available under ameliorative sentencing legislation that takes effect after a defendant enters a plea agreement for a stipulated sentence." (Fox, supra, 90 Cal.App.5th at p. 831.) Again, Mitchell and Sallee hold that section 1170, subdivision (b), does not apply when a trial court takes a plea with an agreement to a stipulated sentence because the trial court is not exercising sentencing discretion under section 1170, subdivision (b). (Mitchell, supra, 83 Cal.App.5th at pp. 1057-1059; Sallee, supra, 88 Cal.App.5th at pp. 338-339.) However, as Stamps points out, the court's power to accept or reject a stipulated plea is itself an exercise of its discretion. Indeed, Stamps stated that "[t]he court's exercise of its new discretion to strike the serious felony enhancement . . . would fall within the court's broad discretion to withdraw its prior approval of the plea agreement." (Stamps, supra, 9 Cal.5th at p. 708.)
The Stamps remedy is also in line with the legislative intent of Senate Bill 567, which Prudholme counsels should be the final determinant in cases like this.
Senate Bill 567 was intended to address" 'the mass incarceration trend in American and California societies that has been part of the policy framework of the carceral system for decades.'" (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 567 (2021-2022 Reg. Sess.) as amended May 20, 2021, p. 3.) The author of Senate Bill 567 argued "'[t]hat trend in our carceral system has been a collective detriment that needs to be reversed, and this bill is a small step in the right direction.'" (Ibid.) According to the author, "'studies . . . show that long sentences do not deter people from committing crime and are counter-productive to rehabilitating people and bringing them back to the fold of our society,'" and therefore, "'we need to ensure that the harshest sentences receive the greatest scrutiny and justification.'" (Ibid.)
Given the legislative history and intent of Senate Bill 567, the remedy outlined under Stamps, Todd, and Fox is the appropriate one. Because the court's imposition of the upper term does not comply with the requirements of section 1170, subdivision (b), as amended by Senate Bill 567, remand for resentencing is necessary for the trial court to comply with the new mandates of section 1170, subdivision (b). (Todd, supra, 88 Cal.App.5th at p. 381.) Accordingly, we will "remand the matter to permit [the defendant] to waive or invoke the requirements of section 1170, subdivision (b)." (Ibid.) "As in Stamps, [defendant] may choose to freely and voluntarily waive the requirements of section 1170, subdivision (b)(2) and (3) and accept the plea bargain." (Ibid.) If defendant invokes those requirements, "the trial court must determine whether there are circumstances in aggravation as described in section 1170, subdivision (b)(2) and . . . that justify the imposition of the upper-term sentence under the plea bargain and state its facts and reasons on the record." (Ibid.) "If it can be so imposed, then the sentence will stand." (Fox, supra, 90 Cal.App.5th at p. 835.) If the trial court concludes there are no circumstances in aggravation, it cannot impose the upper term. (Todd,-at p. 381.) Then, if "the prosecution does not acquiesce to a reduced sentence or the trial court no longer approves of the plea agreement with the reduction," the court must withdraw its approval of the plea agreement or permit the People to withdraw from the plea bargain and "'return the parties to the status quo.'" (Fox, at p. 835; Todd, at p. 381.)
DISPOSITION
The judgment is reversed and the matter is remanded. On remand, defendant may request relief under Senate Bill 567. If he does, the trial court shall determine whether the upper term could be imposed under Senate Bill 567. If it cannot be imposed, the prosecution may agree to keep the plea agreement in place but substitute a middle term sentence for the existing upper term. However, if either party or the trial court chooses to withdraw from the plea agreement rather than allow this change, the court shall return the parties to the position they were in before defendant's plea.
We concur: RAMIREZ P. J., McKINSTER J.