People v. McDonald CA3 ( 2022 )

Filed 8/22/22 P. v. McDonald 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
----
THE PEOPLE, C094485
Plaintiff and Respondent, (Super. Ct. No. 19CR001960)
v.
QUINTON TRAVIS MCDONALD,
Defendant and Appellant.
Defendant Quinton Travis McDonald agreed to a stipulated upper term of three
years, which was suspended while he was placed on probation, in a plea agreement.
After defendant violated his probation terms, consistent with the plea agreement, the trial
court executed defendant’s three-year sentence. Defendant appeals, arguing the changes
made to Penal Code section 1170, subdivision (b) by Senate Bill No. 567 (2021-2022
1
Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567) do not permit an upper term sentence
under the circumstances of the case.1 We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with severing a phone line (§ 591),
misdemeanor spousal battery (§ 243, subd. (e)(1)), and two misdemeanor counts of
endangering a child (§ 273a, subd. (b)). In August 2019, defendant pleaded guilty to the
severing a phone line count and the prosecution dismissed the other counts.2 The trial
court imposed the stipulated upper term of three years, suspended execution of the
sentence, and placed defendant on a five-year probation term.
In June 2021, defendant admitted a probation violation and the prosecution
dismissed a separate case in which defendant had been charged with forgery (§ 470,
subd. (d)). The trial court lifted the suspension on the three-year prison sentence and
permitted the last two months of the sentence to be served on mandatory supervision.
Defendant filed a notice of appeal without a certificate of probable cause.
DISCUSSION
Defendant argues he is entitled to resentencing because of the changes made to
section 1170, subdivision (b) by Senate Bill 567. According to defendant, the changes
limit the trial court’s ability to impose more than the middle term unless a defendant
stipulates to the aggravating circumstances, those circumstances have been found true
beyond a reasonable doubt, or the court is relying on prior convictions based on a
certified record of conviction. Because none of these circumstances are met here,
defendant reasons he is entitled to resentencing under the amended statute.
1 Further undesignated statutory references are to the Penal Code.
2 Defendant also pleaded guilty in a separate case that is not at issue in this appeal.
2
Senate Bill 567 amended section 1170, effective January 1, 2022. (Stats. 2021,
ch. 731.) Under the amended version of section 1170, when a judgment of imprisonment
is to be imposed and a 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 [section 1170, subdivision (b)(2)].” (§ 1170, subd. (b)(1).)
Section 1170, subdivision (b)(2) provides that the trial 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.”
The parties agree Senate Bill 567 applies retroactively to defendant’s case under
In re Estrada (1965) 63 Cal.2d 740 and People v. Esquivel (2021) 11 Cal.5th 671.
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 as to the effect Senate Bill 567 should have on the case.
Defendant argues the case should be remanded to allow defendant a new sentencing
hearing that comports with the amended statute. The People argue that, because
defendant stipulated to an upper term sentence, the trial court had no discretion to impose
anything other than the upper term. Thus, section 1170, subdivision (b)(1) did not, and
does not, apply to defendant’s case, and the changes to the statute do not make any
difference in defendant’s sentencing. We conclude section 1170, subdivision (b) does not
apply to defendant’s stipulated sentence.
The reasoning in People v. Brooks (2020) 58 Cal.App.5th 1099 (Brooks), which
considered the application of similar legislative changes, is persuasive. In Brooks, the
defendant agreed to a stipulated sentence in a plea agreement. (Id. at p. 1102.) After the
3
trial court sentenced the defendant, the Legislature enacted section 1170.91, which
required the trial court to consider trauma a defendant suffered as a result of military
service as a mitigating factor when imposing a sentence under section 1170. (Brooks, at
pp. 1103-1104.) The trial court denied the defendant’s petition to recall his sentence
under the new law, finding it had no power to resentence him because he had agreed to a
stipulated term in his plea agreement. (Id. at p. 1103.) The appellate court concluded
because the defendant stipulated to the term of his sentence in the plea agreement, the
trial court did not apply judicial discretion at the time it sentenced him and had no
discretion on resentencing, because to do so would unlawfully modify the terms of his
plea agreement. (Id. at pp. 1106-1107.) Once the trial court accepted the plea agreement,
it was required to impose a sentence within the limits of that plea bargain. (Ibid.) As a
result, when the court sentences a defendant to a stipulated term, it is not exercising its
“triad sentencing discretion.” (Id. at p. 1107.)
In other words, “ ‘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. Therefore, the trial court is not “imposing a term under subdivision (b) of
Section 1170.” (§ 1170.91, subd. (a).)’ ” (Brooks, supra, 58 Cal.App.5th at p. 1109.)
Other courts have concluded similarly. (People v. King (2020) 52 Cal.App.5th 783, 791;
People v. Pixley (2022) 75 Cal.App.5th 1002, 1007-1008.)
Like the statute in Brooks, the relevant changes in Senate Bill 567 rest on the trial
court’s exercise of its sentencing discretion under section 1170, subdivision (b). In
defendant’s case, the trial court imposed a sentence in accordance with the plea
agreement, which included an upper term three-year sentence for the severing a phone
line conviction. The trial court accepted the plea agreement and did not exercise any
discretion to impose the lower, middle, or upper term sentence under section 1170,
subdivision (b). Thus, as in Brooks, the trial court had no discretion but to sentence
4
defendant to the agreed upon term. (Brooks, supra, 58 Cal.App.5th at pp. 1106-1107.)
Because defendant was not sentenced under section 1170, subdivision (b), the changes
made by Senate Bill 567, even if applied retroactively, do not affect defendant’s sentence.
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
EARL, J.
5