People v. Carbajal CA3 ( 2023 )

Filed 8/8/23 P. v. Carbajal 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C097129
Plaintiff and Respondent, (Super. Ct. No. CRF1900725)
v.
ELEANA MISHELLE CARBAJAL,
Defendant and Appellant.
Defendant Eleana Mishelle Carbajal left her baby alone in the bathtub resulting in
his death. Originally charged with murder, defendant pled no contest to felony child
abuse while personally inflicting great bodily injury and involuntary manslaughter in
exchange for a stipulated term of 12 years in state prison with execution suspended and
probation. After defendant admitted violating probation, the trial court lifted the stay on
the previously suspended sentence, which included upper terms on both counts and the
enhancement.
On appeal, defendant contends she is entitled to be resentenced under recently
enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which limits a trial
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court’s discretion to impose upper term sentences. (Stats. 2021, ch. 731, § 1.3.)
Assuming defendant may raise her appellate claim, we conclude defendant is not entitled
to the ameliorative benefit of Senate Bill 567 because the trial court did not exercise any
discretion in imposing the stipulated sentence under the parties’ plea agreement.
Accordingly, we shall affirm the judgment.
I. BACKGROUND
The facts underlying defendant’s convictions are not relevant to our disposition.1
Briefly summarized, defendant left her 22-month-old son unattended in the bathtub after
filling it with a few inches of water; when she returned several minutes later, she found
him unresponsive, and he was later pronounced dead at the hospital.
Following her son’s death, defendant was charged with murder (Pen. Code, § 187,
subd. (a)—count 1),2 willful harm or injury to a child likely to cause great bodily injury
or death (felony child abuse) (§ 273a, subd. (a)—count 2), and involuntary manslaughter
(§ 192, subd. (b)—count 3). Count 2 included a great bodily injury enhancement
(§ 12022.7, subd. (d)).
In November 2019, pursuant to a negotiated plea bargain, defendant pled no
contest to felony child abuse and involuntary manslaughter and admitted the great bodily
injury enhancement in exchange for a stipulated term of 12 years in state prison that
would be suspended with a five-year grant of felony probation and dismissal of the
remaining murder charge. The following month, in December 2019, the trial court
imposed and suspended the stipulated 12-year term, which included the upper term of six
1 Defendant stipulated to the preliminary hearing transcript and all evidence admitted at
the preliminary hearing, the police report (YSCO-18-4785) and associated coroner’s
report, probation report, and all Department of Justice reports as the factual basis for her
plea.
2 Further undesignated statutory references are to the Penal Code.
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years for the felony child abuse conviction (count 2), six years for the attached great
bodily injury enhancement, and a concurrent four-year upper term for the involuntary
manslaughter conviction (count 3). The court placed defendant on probation for five
years with various terms and conditions, including that she could not have unsupervised
contact with children under the age of 12 years old.
In August 2022, defendant admitted she violated probation by having a child
under 12 years of age at her residence without supervision. The next month, the trial
court lifted the stay on the 12-year prison sentence despite defense counsel’s request that
the court continue to stay the execution of sentence. Defendant timely appealed.
II. DISCUSSION
Defendant contends the case should be remanded for resentencing because the trial
court imposed the upper term on counts 2 and 3 as well as on the great bodily injury
enhancement with no aggravating facts stipulated to or admitted by defendant nor found
true by a jury as Senate Bill 567 now requires. That is, despite her plea agreement, the
12-year upper term sentence she received is no longer authorized under Senate Bill 567.
Before turning to the merits, we first consider whether defendant properly preserved this
issue for review.
When defendant initially pled no contest and was sentenced to a suspended
stipulated term in 2019, Senate Bill 567 had not yet been enacted. Thus, she could not
have objected based on Senate Bill 567 at that time.
However, by August 2022, when the trial court lifted the stay of execution on her
stipulated prison term, Senate Bill 567 had been in effect since January 2022. (Stats.
2021, ch. 731, § 1.3.) At that hearing, defendant did not argue or otherwise object that
her stipulated upper term sentence failed to comport with Senate Bill 567’s new
sentencing requirements, instead arguing only that she technically, rather than
substantively, violated the terms of her probation. The absence of an objection based on
Senate Bill 567 arguably forfeits the issue on appeal. (People v. Garcia (2010)
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185 Cal.App.4th 1203, 1218 [“ ‘Claims of error relating to sentences “which, though
otherwise permitted by law, were imposed in a procedurally or factually flawed manner”
are waived on appeal if not first raised in the trial court’ ” (italics omitted)].)
Nevertheless, because the trial court simply lifted the stay on a sentence imposed
before Senate Bill 567 took effect, and because a reviewing court may exercise discretion
to review a forfeited claim, especially one that involves a legal question rather than a
question of fact (In re Sheena K. (2007) 40 Cal.4th 875, 888-889), we shall consider
defendant’s appeal on the merits. For the reasons explained below, we reject her claim
that Senate Bill 567 applies to the stipulated sentence in her plea bargain.
As relevant here, Senate Bill 567 generally limits the trial court’s ability to impose
the upper term sentence unless aggravating circumstances that justify imposing a term in
excess of the middle term have been stipulated to by the defendant or found true beyond a
reasonable doubt by a jury or the judge in a court trial. (§ 1170, subd. (b)(1)-(2).) Senate
Bill 567 applies retroactively to cases not yet final on appeal under In re Estrada (1965)
63 Cal.2d 740. (People v. Flores (2022) 75 Cal.App.5th 495, 500.) Although we agree
with the parties that Senate Bill 567 is retroactive, we conclude the new legislation does
not apply to defendant’s stipulated plea agreement.
As Division Five of the First Appellate District explained in People v. Mitchell
(2022) 83 Cal.App.5th 1051 (Mitchell), review granted December 14, 2022, S277314, the
statutory language employed in Senate Bill 567 demonstrates it was not intended to apply
to sentences imposed pursuant to stipulated plea agreements. (Mitchell, supra, at
pp. 1058-1059.) The Mitchell court reasoned that “amended section 1170, subdivision
(b)(1) states that where an offense provides for a sentencing triad, 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),’ ” and by sentencing the defendant to a stipulated
term, “[t]he court had 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’
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under former section 1170, subdivision (b). Indeed, when presented with a stipulated
plea agreement, a trial court may either accept or reject it. ‘ “Should the court consider
the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or
indirectly.” ’ (People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047.)” (Id. at
p. 1058.)
“ ‘ “A plea agreement is, in essence, a contract between the defendant and the
prosecutor to which the court consents to be bound.” ’ ” (People v. Cunningham, supra,
49 Cal.App.4th at p. 1047.) The parties to the agreement specify the terms of the
agreement, which may include the length of the sentence to be imposed by the court.
(§ 1192.5, subd. (a).) Having approved the plea, “the court may not proceed as to the
plea other than as specified in the plea.” (§ 1192.5, subd. (b); see Mitchell, supra,
83 Cal.App.5th at p. 1058.)
The reasoning in People v. Brooks, which considered the application of similar
legislative changes, also provides useful guidance. (People v. Brooks (2020)
58 Cal.App.5th 1099, 1106-1107.) There, the Brooks court found that when a trial court
sentenced the defendant to a stipulated term, it was not exercising its triad sentencing
discretion so amended section 1170.91, which mandates “consideration of trauma
resulting from military service as a mitigating factor when a court exercises determinate
sentencing triad discretion,” did not apply.
We recognize that the Sixth Appellate District recently disagreed with Mitchell in
People v. Todd (2023) 88 Cal.App.5th 373, 378, 381, review granted April 26, 2023,
S279154. In so doing, the Todd court found that a plea is not knowing and intelligent
under section 1016.83 if it requires a defendant to generally waive unknown benefits of
3 Section 1016.8 codifies the Supreme Court’s statement in Doe v. Harris (2013)
57 Cal.4th 64, 66, that plea agreements are not insulated “from changes in the law that
the Legislature has intended to apply to them,” and further provides that any provision of
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future legislative enactments. (Todd, supra, at pp. 379-380.) But Todd fails to
persuasively explain why Senate Bill 567 would apply where the trial court does not
impose upper terms under an accepted stipulated plea agreement as an exercise of the
court’s own independent sentencing discretion rather than merely carrying out the terms
agreed to by the parties. Until such time as our Supreme Court resolves this split of
authority, we find Mitchell’s analysis more persuasive and conclude the trial court had no
opportunity to exercise its triad sentencing discretion when lifting the stay of execution
on the stipulated upper term sentence here. As such, we do not find that the recent
amendments to section 1170 apply to this case.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
BOULWARE EURIE, J.
a bargain that requires a defendant to generally waive unknown 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, subds. (a)(1), (b), italics added.)
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