Opinion
B327960
04-16-2024
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL VELOZ, Defendant and Appellant.
Jason A. Lieber, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA476952. Renee F. Korn, Judge. Affirmed.
Jason A. Lieber, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
LUI, P. J.
Ismael Veloz appeals the judgment entered following the revocation and termination of probation and imposition of an upper term sentence. Appellant contends the case should be remanded for a new sentencing hearing in light of the enactment of Senate Bill No. 567, which amended Penal Code section 1170 to restrict a trial court's discretion to impose an upper term sentence. We disagree and affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL SUMMARY
On April 10, 2019, around 3:30 p.m., Officer Jose Pleitz of the Los Angeles Police Department, Central Traffic Division, pulled appellant over after observing him driving erratically. The officer detected the odor of alcohol coming from inside the car. Appellant did not have a driver's license, and the officer confirmed that appellant's license had been suspended for driving under the influence. Following appellant's arrest, he performed poorly on each of several standard field sobriety tests administered. Appellant took a breathalyzer test resulting in blood-alcohol content readings of .084 percent and .082 percent.
PROCEDURAL BACKGROUND
Appellant was charged with driving under the influence of an alcoholic beverage within 10 years of three other driving under the influence offenses (Veh. Code, § 23152, subd. (a), felony; count 1), driving with a suspended or revoked driving privilege (Veh. Code, § 14601.2, subd. (a), misdemeanor; count 2), and driving a vehicle not equipped with an ignition interlock device when driving privilege is restricted (Veh. Code, § 23247, subd. (e), misdemeanor; count 3).
On June 6, 2019, appellant pleaded no contest to count 1 and admitted the allegation that he had suffered three prior driving under the influence convictions. Appellant stipulated to a three-year sentence, and pursuant to the negotiated plea agreement, the trial court sentenced appellant to the upper term of three years in state prison, suspended execution of the sentence, and placed appellant on formal probation for 36 months.
Thereafter on July 18, 2019, appellant admitted to violating his probation, and the trial court found him in violation of probation. The court reinstated probation, but ordered appellant to serve 37 days in county jail with 37 days of custody credits.
On November 25, 2019, appellant admitted to violating probation again, and the trial court found him in violation of probation. Once again, the trial court reinstated probation with modified terms and conditions, including a requirement that appellant attend 104 Alcoholics or Narcotics Anonymous meetings at a rate of two meetings per week.
Less than a month later on December 20, 2019, appellant's probation was revoked and a bench warrant issued for his arrest. Appellant appeared in court on March 12, 2020, and the bench warrant was recalled and quashed. On April 7, 2020, the court set a probation violation hearing for June 15, 2020, and granted appellant's motion to be released on his own recognizance because of the COVID-19 pandemic. But appellant failed to appear for the June 15, 2020 probation violation hearing, and the court issued another bench warrant. That bench warrant was recalled and quashed more than two years later, on October 6, 2022.
The trial court conducted a formal probation violation hearing on December 21, 2022. The defense requested imposition of the middle term of two years in county jail under Senate Bill No. 567 on the ground that appellant had not admitted any aggravating factors to justify the upper term. Finding appellant in violation of his probation, the court revoked probation and imposed the stipulated upper term sentence of three years in Los Angeles County jail. The court noted that prior to failing to appear for the previously set probation violation hearing, appellant had admitted two violations of probation on July 18, 2019, and November 25, 2019. In both instances, the court had reinstated probation with specific terms and conditions. But the court found that appellant had "not complied with any of the terms and conditions of probation," and declared, "Based on all of those factors, the defendant is sentenced to the upper term of three years."
DISCUSSION
Appellant contends his upper term sentence should be vacated and the matter remanded to the trial court to sentence appellant to the middle term in accordance with section 1170, subdivision (b) as amended by Senate Bill No. 567. We disagree that the retroactive application of Senate Bill No. 567's changes to section 1170, subdivision (b) requires remand in this case.
Prior to the passage of Senate Bill No. 567, which went into effect on January 1, 2022, the trial court could, in the exercise of its sound discretion, choose a low, middle, or upper term sentence. (People v. Todd (2023) 88 Cal.App.5th 373, 377 (Todd), review granted Apr. 26, 2023, S279154.) Thus, in 2019 when appellant entered into his plea agreement with the People, there was no presumptive sentence to affect how the parties could structure their plea bargain. However, with the passage of Senate Bill No. 567, the middle term became the presumptive sentence, subject only to specific exceptions. (Stats. 2021, ch. 731, § 1.3; § 1170, subd. (b)(1).) As amended, section 1170, subdivision (b) now provides that the trial court must impose the presumptive middle term of a sentencing triad unless "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)(1) &(2); People v. Fox (2023) 90 Cal.App.5th 826, 830-831 (Fox).)
The People concede that Senate Bill No. 567's changes to section 1170, subdivision (b) apply retroactively to appellant's case, which is not yet final. (See, e.g., People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 742-748; see also People v. Stamps (2020) 9 Cal.5th 685, 699 (Stamps) [under Estrada, Senate Bill No. 1393 (2017-2018 Reg. Sess.) applies retroactively to nonfinal appeal of a defendant who entered plea agreement for a specified term].) However, respondent contends the amendments to section 1170 have no effect in this case because appellant received the upper term as part of the stipulated sentence in his plea bargain, and not as a result of any discretion exercised by the trial court.
The Courts of Appeal are divided on whether a defendant who agreed to an upper term sentence as part of a stipulated plea agreement is entitled to a remand in light of the passage of Senate Bill No. 567, and the issue is currently under review by the Supreme Court. (Compare People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059 (Mitchell), review granted Dec. 14, 2022, S277314 [trial court exercised no discretion in imposing stipulated sentence in plea agreement; defendant thus not entitled to remand], People v. Sallee (2023) 88 Cal.App.5th 330, 334, 338, review granted Apr. 26, 2023, S278690 [same], with Todd, supra, 88 Cal.App.5th at pp. 378-382, rev.gr. [disagreeing with Mitchell and concluding stipulated sentence in negotiated plea agreement does not negate requirements under amended § 1170, subd. (b), making remand appropriate remedy], Fox, supra, 90 Cal.App.5th at pp. 833-834 [same], People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1062-1063, review granted Feb. 21, 2024, S283452 [agreeing with Todd and Fox].)
The courts in Todd and Fox followed the reasoning of the Supreme Court in Stamps, supra, 9 Cal.5th at pages 705-709, to conclude that "a defendant who agreed to serve the upper term under a plea agreement is nonetheless entitled to a remand to ensure section 1170[, subdivision] (b)'s requirements are met." (Fox, supra, 90 Cal.App.5th at p. 830; Todd, supra, 88 Cal.App.5th at pp. 380-381, rev.gr.) In Stamps, as part of a negotiated plea agreement, the defendant had stipulated to a nine-year prison sentence that included a five-year term for a prior serious felony enhancement under section 667, subdivision (a). (Stamps, at pp. 692-693.) While defendant's appeal was pending, the Legislature enacted Senate Bill No. 1393, which amended section 1385 to permit the trial court to strike a prior serious felony enhancement in furtherance of justice. (Id. at pp. 692, 700.)
In considering whether such a change in the law applied retroactively to the terms of defendant's plea agreement, the Stamps court cited its holding in Doe v. Harris (2013) 57 Cal.4th 64, 71 (Doe), that" 'the general rule in California is that 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.'" (Stamps, supra, 9 Cal.5th at p. 695.) The high court continued, the fact" '[t]hat the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them' ([Doe, ] at p. 66), and '[i]t follows . . . that requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement' ([Doe,] at p. 73)." (Stamps, at pp. 695-696.) Stamps further observed that section 1016.8, added by Assembly Bill No. 1618 (2019-2020 Reg. Sess.), codified the court's decision in Doe (§ 1016.8, subd. (a)(1)), "and clarified that any 'provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy' (§ 1016.8, subd. (b))." (Stamps, at p. 705.)
Stamps thus concluded that the amendment to section 1385 applied retroactively to defendant's case (Stamps, supra, 9 Cal.5th at p. 705), but rejected the argument that the trial court should "consider striking the serious felony enhancement while otherwise maintaining the plea agreement intact." (Id. at p. 700.) Rather, the court held that defendant was entitled to a limited remand to request that the trial court exercise its discretion to strike the enhancement. (Id. at p. 707.)
Appellant contends that under section 1016.8 and applying the reasoning of Stamps, his plea agreement cannot stand as a bar to relief with the retroactive application of the changes to section 1170, subdivision (b), and remand is required. We agree that under Stamps and section 1016.8 appellant would be eligible for the benefit of the new law notwithstanding his plea agreement, but we conclude he is not entitled to remand under the circumstances of this case because the trial court already found circumstances in aggravation justifying imposition of the upper term under section 1170, subdivision (b) as amended.
Amended section 1170, subdivision (b) allows a court to impose a sentence exceeding the middle term when there are circumstances in aggravation that justify the higher term, "and the facts underlying those circumstances have been stipulated to by the defendant." (§ 1170, subd. (b)(1) &(2); Fox, supra, 90 Cal.App.5th at pp. 830-831.) Circumstances in aggravation include a finding that "[t]he defendant's prior performance on probation . . . was unsatisfactory." (Cal. Rules of Court, rule 4.421(b)(5).)
As the trial court found in denying appellant's request for imposition of the two-year middle term, such aggravating circumstances existed in this case. Before he failed to appear for the previously set probation violation hearing on June 15, 2020, the court noted that appellant had admitted two prior violations of probation in this case on July 18, 2019, and November 25, 2019. Further, at his probation violation hearing on December 21, 2022, appellant did not dispute that he had violated probation a third time, but only requested a downward departure from his stipulated sentence. Although the court had twice reinstated probation, it found appellant still had "not complied with any of the terms and conditions of probation." The trial court thus denied appellant's request for imposition of the middle term, and "[b]ased on all of those factors, . . . sentenced [appellant] to the upper term of three years."
As the court in Fox observed, "Section 1170[, subdivision] (b)'s requirements are satisfied if a defendant stipulates to aggravating circumstances justifying the upper term." (Fox, supra, 90 Cal.App.5th at p. 834.) And just a single factor in aggravation will suffice to support a court's imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730.) Here, the trial court found an aggravating circumstance supporting imposition of the upper term in appellant's admission of two probation violations in this case. Thus, remand to give appellant the opportunity to invoke the requirements of section 1170, subdivision (b) would constitute an exercise in futility and a needless expenditure of judicial resources.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J. HOFFSTADT, J.