People v. Smith CA1/1 ( 2024 )

Filed 1/4/24 P. v. Smith CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-
dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A167224
v.
CHAUNCEY GLENN SMITH, (Mendocino County
Super. Ct. No.
Defendant and Appellant.
21CR00021)
MEMORANDUM OPINION1
Defendant appeals from the execution of a suspended judgment that
was imposed pursuant to a negotiated disposition wherein defendant pleaded
no contest to one count of felony failure to appear (Pen. Code, § 1320, subd.
(b))2 in exchange for the dismissal of a charge of defrauding an innkeeper in
excess of $950 (§ 537, subd. (a)(2)) and allegations of 13 prior robbery
convictions. The deal also included an agreed-to suspended sentence of three
years, the upper term for the offense, and formal probation for two years.
This appeal is appropriately resolved by memorandum opinion in
1
accordance with California Standards of Judicial Administration, section 8.1.
All further statutory references are to the Penal Code unless
2
otherwise indicated.
1
Defendant entered into the plea deal prior to the recent amendments to
section 1170 made by Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill
567), but execution occurred after the effective date of the amendments. He
therefore objected to execution of the sentence on the ground the trial court
could not impose the upper term in the absence of facts in aggravation
admitted by defendant or found by the trier of fact. The prosecutor urged,
and the trial court ruled, the amendments did not apply to an agreed-to
sentence. The trial court emphasized the generosity of the agreed-to
disposition—that the felony fraud count was dismissed and the 13 alleged
strike convictions were struck, enabling defendant to receive probation when,
in fact, he was not otherwise eligible for probation.3
In People v. Fox (2023) 90 Cal.App.5th 826, 830 (Fox), this court
considered a like scenario and concluded the statutory language and prior
precedent compel the conclusion the amendments enacted through Senate
Bill 567 apply to negotiated dispositions that include an agreed-to (or
stipulated) sentence. We therefore concluded such sentences must be
reversed on appeal. However, we also concluded that on remand, the
principles set forth in People v. Stamps (2020) 9 Cal.5th 685 (Stamps) apply.
(Fox, at p. 829.) Stamps held that while a defendant may be entitled to the
benefits of ameliorative sentencing provisions, he or she cannot, on choosing
to avail himself or herself of such benefits, also retain the other benefits of
the plea agreement. (Ibid.)
3 As a preliminary matter, the Attorney General urged in his
respondent’s brief that defendant’s appeal is moot since he has now served
the balance of his sentence. In his closing brief, defendant disagreed, and in
further briefing on the issue requested by the court, the Attorney General
withdrew his assertion the appeal is moot. We therefore do not consider the
issue further.
2
As in Fox, we therefore conclude remand is required to allow defendant
“ ‘to waive or invoke the requirements of section 1170[(b)].’ ” (Fox, supra,
90 Cal.App.5th at p. 835, quoting People v. Todd (2023) 88 Cal.App.5th 373,
381, review granted Apr. 26, 2023, S279154.) If defendant does not waive
those requirements, the trial court must determine whether the upper term
can be imposed in compliance with section 1170, subdivision (b). If it can be
so imposed, then the sentence will stand. But if it cannot, and the
prosecution does not acquiesce to a reduced sentence or the trial court no
longer approves of the plea agreement with the reduction, the court must “
‘return the parties to the status quo.’ ” (Fox, at p. 835, quoting Todd, at pp.
381–382.) “We may question the wisdom of [defendant’s] desire to seek relief
that is likely to upend the plea agreement, given he has already served . . .
his sentence and faces an indeterminate sentence if the dismissed charges
are reinstated, but it is ultimately his choice whether to do so.” (Fox, at p.
835.)
DISPOSITION
The judgment is reversed and the matter remanded for further
proceedings consistent with this opinion.
3
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Castro, J.*
*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A167224, People v. Smith
4