People v. Nixon CA3 ( 2022 )

Filed 9/30/22 P. v. Nixon CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094767
Plaintiff and Respondent, (Super. Ct. No. 17FE009669)
v.
BRANDON ANDRE KEITH NIXON,
Defendant and Appellant.
Defendant Brandon Andre Keith Nixon stipulated to the terms of his sentence. He
appeals and seeks resentencing under the ameliorative sentencing provisions of Senate
Bill No. 567 regarding upper term sentences and sentences imposed on youthful
offenders.
We affirm the judgment. The sentencing provisions of Senate Bill No. 567 do not
apply to stipulated sentences.
FACTS AND HISTORY OF THE PROCEEDINGS
Pursuant to a plea agreement, defendant in 2018 pleaded no contest to carrying a
concealed weapon, carrying a loaded firearm, perjury, and two misdemeanor counts of
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unlawfully possessing ammunition. (Pen. Code, §§ 25400, subd. (a)(1); 25850, subd. (a);
118, subd. (a); 30305, subd. (a)(1); statutory section citations that follow are found in the
Penal Code unless otherwise stated.)
The trial court sentenced defendant consistent with the stipulated terms of the plea
agreement: a five-year, four-month split sentence with the first four months to be served
in custody and the remaining five years on mandatory supervision. The sentence was
based on the upper term of four years for the perjury count and eight months (one-third
the middle term) for each of the weapon counts, to be served consecutively. For the
misdemeanor counts, the court sentenced defendant to concurrent terms of four months
each with both terms to be served in custody.
In 2021, defendant was convicted in Sacramento Superior Court case No.
19FE014370 of making criminal threats. (§ 422.) (An appeal from the new judgment is
currently pending. (People v. Nixon, C094488).) Due to the new conviction, the trial
court in the present case revoked defendant’s mandatory supervision and ordered him to
serve the remainder of his sentence in state prison.
DISCUSSION
At the time defendant was sentenced, section 1170, subdivision (b) gave trial
courts broad discretion to decide which of the three terms of incarceration specified for
an offense would best serve the interests of justice. (See former § 1170, subd. (b), as
amended by Stats. 2020, ch. 29, § 14.) Effective January 1, 2022, Senate Bill No. 567
(2021-2022 Reg. Sess.; Stats. 2021, ch. 731, § 1.3, 3(c)) (Senate Bill 567) amended
section 1170 by making the middle term the presumptive sentence when the court has
discretion to impose one of the three terms. Under the new law, “[w]hen 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 that the trial court may impose the upper term when there are
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circumstances in aggravation and the facts underlying those aggravating circumstances
have been stipulated by the defendant or found true beyond a reasonable doubt by a jury
or court trial. (§ 1170, subd. (b)(1), (2).)
Senate Bill 567 also incorporated language from Assembly Bill No. 124 to amend
section 1170 to make the low term the presumptive sentence if the defendant was a
“youth” (defined as a person under the age of 26 years) at the time of committing the
offense. (§§ 1170, subd. (b)(6), (b)(6)(B); 1016.7, subd. (b).) Under those
circumstances, a trial court must impose the low term when the person’s youth was a
contributing factor in the commission of the offense “unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice.” (§ 1170, subd. (b)(6).)
Defendant was 23 years old when he committed his offenses, and his judgment is
not final. The parties agree that Senate Bill 567’s amendments apply retroactively to this
case as “an ameliorative change in the law applicable to all nonfinal convictions on
appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 [].)” (People v.
Flores (2022) 73 Cal.App.5th 1032, 1039, fn. omitted.) They disagree, however, as to
whether defendant is entitled to any relief.
Defendant contends he is entitled to resentencing because his current sentence did
not comply with Senate Bill 567. No jury found beyond a reasonable doubt, nor did
defendant stipulate to any facts supporting aggravating circumstances to justify the upper
term sentence. Also, he was 23 years old at the time of the offense, entitling him to be
sentenced presumptively to the lower term.
In the People’s view, Senate Bill 567’s amendments to section 1170 do not apply
because defendant stipulated to the sentence in his negotiated plea agreement, including
the upper term on the perjury count, and the trial court simply imposed sentence in
accordance with the agreement, lacking discretion to impose a different term. We agree
with the People.
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The plain language of the amendatory language in section 1170 relates to the
discretion involved when the court fashions and imposes a sentence from a sentencing
triad, not the parties’ ability to negotiate or the court’s authority to accept a stipulated
sentence. (See § 1170, subd. (b)(6) [stating the court shall impose the lower term unless
the court finds the interests of justice demand otherwise]; § 1170, subd. (b)(2) [discussing
the court’s ability to exercise its discretion to exceed the middle term in imposing a
sentence].) Here, because the plea agreement included a stipulated sentence, including an
agreed-upon upper term, the trial court was never called upon to exercise any discretion
in fashioning a sentence. Nor could it do so.
A negotiated plea is a contract. (Doe v. Harris (2013) 57 Cal.4th 64, 69.)
“ ‘ “When a guilty [or nolo contendere] plea is entered in exchange for specified benefits
such as the dismissal of other counts or an agreed maximum punishment, both parties,
including the state, must abide by the terms of the agreement.” ’ ” (People v. Segura
(2008) 44 Cal.4th 921, 930-931.) The trial court may decide not to approve the terms of
a plea agreement negotiated by the parties if it does not believe the agreed -upon
disposition is fair, but it cannot change that bargain or agreement without the consent of
both parties. (Id. at p. 931.) If the court accepts the plea, “the court may not proceed as
to the plea other than as specified in the plea.” (§ 1192.5, subd. (b).)
In the present case, the trial court followed the rules applicable to negotiated pleas
and conducted no analysis of aggravating and mitigating circumstances. The court
sentenced defendant consistent with the agreed-upon terms of the sentence. Because
under these circumstances the trial court could not both accept the plea agreement and
make a discretionary sentencing choice under section 1170, subdivision (b), Senate Bill
567’s amendments of section 1170 are inapplicable to this case.
Several courts have considered an analogous situation in cases arising under
section 1170.91, which mandates consideration of trauma resulting from military service
as a mitigating factor when a court exercises discretion in imposing a determinate
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sentence from the triad pursuant to section 1170, subdivision (b). (See, e.g., People v.
Pixley (2022) 75 Cal.App.5th 1002; People v. Brooks (2020) 58 Cal.App.5th 1099(Brooks); People v. King (2020) 52 Cal.App.5th 783.) In those cases, petitioners sought
resentencing on matters previously resolved through plea agreements with stipulated
sentences of a fixed number of years. The courts denied relief on the same basis
applicable here: when a court accepts a plea agreement specifying a particular sentence
and sentences a defendant in accordance with that agreement, the trial court cannot
impose a different sentence; it may not consider factors in mitigation and aggravation;
and it exercises no discretion to decide between an upper, middle, and lower term.
(Brooks, at pp. 1108-1109, quoting King, at p. 791; Pixley, at pp. 1005-1006.)
Defendant argues that the cases interpreting section 1170.91 do not apply here.
He claims that unlike section 1170.91, Senate Bill 567’s amendments eliminated the legal
basis for the judgment because an aggravating factor must now be proven before an
aggravated term may be imposed. The amendments apply whenever “imprisonment is to
be imposed and the statute specifies three possible terms,” including, according to
defendant, in plea agreements. (§ 1170, subd. (b)(1).) Defendant argues the phrase “its
sound discretion” in section 1170, subdivision (b)(1) does not limit the amendments to
when a court exercises its discretion to impose a sentence from the sentencing triad. The
phrase “instead applies to the manner in which the term is to be selected[.]”
Defendant’s argument is unpersuasive. Like section 1170.91, Senate Bill 567’s
amendments do not eliminate the legal basis for a defendant’s stipulated sentence because
by their terms they apply only when a trial court exercises discretion to select one of the
triad sentences under section 1170, subdivision (b). (See Brooks, supra, 58 Cal.App.5th
at p. 1107.) The trial court exercised no such discretion when it approved defendant’s
stipulated sentence. Defendant’s interpretation of the phase “its sound discretion” to
mean the manner or way a term is selected is meaningless. Under section 1170,
subdivision (b), the way a term is selected is by the trial court exercising its discretion to
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select a term. Contrast that method with a plea agreement: “Although a plea agreement
does not divest the court of its inherent sentencing discretion, ‘a judge who has accepted
a plea bargain is bound to impose a sentence within the limits of that bargain.’ ” (People
v. Segura, supra, 44 Cal.4th at p. 931.) “ ‘Should the court consider the plea bargain to
be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.’ ” (Ibid.)
A trial court has no authority or discretion to order imposition of a particular sentence
different than the parties agreed in a plea agreement. The phrase “its sound discretion”
cannot refer to a sentencing where a court has no discretion.
Because we conclude that the amendments to section 1170, subdivision (b) do not
apply to a negotiated plea with a stipulated sentence, we need not address whether the
remedy in People v. Stamps (2020) 9 Cal.5th 685, as raised by the People, is appropriate.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
DUARTE, J.
HOCH, J.
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