88 Cal.App.5th 373
Cal. Ct. App.2023Background
- Defendant Daniel Kevin Todd pleaded no contest to three counts of buying/receiving stolen property and agreed to a stipulated sentence consisting mainly of an upper term (total sentence 3 years 8 months).
- The trial court imposed the stipulated upper-term-based sentence on April 13, 2021; Todd timely appealed.
- Senate Bill No. 567 (effective Jan. 1, 2022) amended Penal Code §1170(b) to make the middle term presumptive and to permit an upper term only when aggravating facts are either stipulated or found true beyond a reasonable doubt (with certified prior convictions an exception).
- Todd’s judgment was not final when SB 567 took effect; the parties agreed the amendment could be retroactive. The Attorney General argued remand was unnecessary because the upper term resulted from a negotiated plea.
- The Court of Appeal held SB 567 applies retroactively and that a negotiated plea does not insulate Todd from the statute; it reversed and remanded for resentencing so the trial court can either obtain a valid waiver or make the §1170(b)(2)-(3) findings/stipulations (or withdraw the plea if necessary).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 567’s amendments to §1170(b) apply retroactively | Apply retroactively (ameliorative change) | Apply retroactively | Applies retroactively under In re Estrada and related authority |
| Whether a negotiated plea imposing an upper term bars relief under amended §1170(b) | Negotiated plea precludes application; court bound to approved stipulated sentence (relying on Mitchell/Brooks) | Plea does not bar relief; §1016.8 prevents plea waivers of unknown future benefits | A negotiated plea does not insulate defendant; Mitchell/Brooks reasoning rejected; plea cannot negate statutory requirements |
| What must happen on remand | Remand is futile; court should be bound to the stipulated upper term | Court must permit defendant to waive or must require findings/stipulation/conviction record before imposing upper term | On remand defendant may waive the §1170(b)(2)-(3) requirements; absent waiver the court must have stipulated or proven aggravating facts or else withdraw approval of the plea |
Key Cases Cited
- People v. Mitchell, 83 Cal.App.5th 1051 (Cal. Ct. App.) (rejects retroactive application where sentence imposed by stipulated plea)
- People v. Flores, 75 Cal.App.5th 495 (Cal. Ct. App.) (discusses retroactivity and amended §1170(b))
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (ameliorative sentencing changes apply retroactively absent contrary legislative intent)
- People v. Brooks, 58 Cal.App.5th 1099 (Cal. Ct. App.) (applied similar reasoning to limit relief where plea was stipulated)
- People v. Stamps, 9 Cal.5th 685 (Cal. 2020) (defendant entitled to seek resentencing under new statutory discretion despite plea)
- Doe v. Harris, 57 Cal.4th 64 (Cal. 2013) (plea agreements generally incorporate subsequent changes in law; parties are not insulated from later legislative changes)