People v. Torres CA2/8 ( 2023 )

Filed 12/12/23 P. v. Torres CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B324422
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA485268)
v.
ANGEL RAMON TORRES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mildred Escobedo, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Angel Ramon Torres appeals
from his conviction for assault pursuant to a stipulated plea
agreement. In June 2022, after defendant had repeatedly failed
to comply with the terms of his probation, the trial court revoked
probation and lifted the stay of execution on the previously
imposed four-year upper term sentence. Defendant moved
unsuccessfully for a recall of sentence and obtained a certificate
of probable cause. His sole contention on appeal is that his upper
term sentence is no longer valid in light of the passage of Senate
Bill No. 567 (2021–2022 Reg. Sess.) and we should order
modification of his agreed-upon sentence from a four-year upper
term to a three-year midterm or remand for further proceedings.
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant and an accomplice were unruly on a city bus and
threatened to kill the bus driver. In August 2020, defendant pled
no contest to one count of assault likely to produce great bodily
injury (Pen. Code, § 245, subd. (a)(4)). The parties stipulated to a
factual basis for the plea. The court accepted defendant’s waivers
on the record and found defendant guilty. Defendant admitted
suffering a prior 2007 strike conviction for first degree burglary.
Pursuant to the terms of the plea agreement, the court
dismissed the prior strike allegation and imposed a four-year
upper term. Defendant was awarded 34 days of presentence
custody credits. The court suspended execution of sentence and
placed defendant on three years formal probation, the terms of
which included 30 days of community labor.
Thereafter, defendant repeatedly failed to comply with the
terms of his probation.
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On June 9, 2022, after issuance of a bench warrant,
defendant appeared in court and admitted he had violated the
terms of his probation. The trial court revoked and terminated
defendant’s probation, lifted the stay of execution on the
previously imposed four-year prison sentence and issued a
forthwith commitment. Defendant filed a motion for recall of
sentence in the trial court, arguing the upper term sentence was
no longer valid in light of the passage of Senate Bill No. 567. The
motion was denied and the court signed a certificate of probable
cause allowing defendant to raise the issue in this court.
DISCUSSION
Defendant contends that in light of the amendments to
Penal Code section 1170 effected by Senate Bill No. 567, we
should modify his sentence to a three-year midterm, instead of
the four-year upper term to which he agreed as part of his 2020
plea agreement. Alternatively, defendant requests, in his reply
brief, that we remand to allow him the opportunity to seek a
modification of his sentence in accordance with People v. Stamps
(2020) 9 Cal.5th 685 (Stamps) and People v. Fox (2023)
90 Cal.App.5th 826 (Fox). We conclude neither remedy is
warranted.
In 2020 when defendant entered into his plea agreement
with the People, the court had discretion to choose a low term,
midterm or upper term sentence, and there was no presumptive
sentence that might affect how the the prosecution and the
defense structured a plea bargain. With the passage of Senate
Bill No. 567, which went into effect on January 1, 2022, the
midterm became the presumptive sentence, unless circumstances
justify the upper term. (Stats. 2021, ch. 731, § 1.3.) Penal Code
section 1170, subdivision (b)(2), now provides that the trial court
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must impose the presumptive midterm of a sentencing triad
unless “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.”
As the People concede, the changes effected by Senate Bill
No. 567 apply retroactively to defendant’s case as they are
ameliorative in nature and therefore apply to all nonfinal
appeals. (See, e.g., People v. Brown (2012) 54 Cal.4th 314, 323
[discussing rule of In re Estrada (1965) 63 Cal.2d 740]; see also
Stamps, supra, 9 Cal.5th at p. 699 [under Estrada rule, Senate
Bill No. 1393 (2017–2018 Reg. Sess.) applies retroactively to
nonfinal appeal of a defendant who entered plea agreement for a
specified term].)
The question remains whether defendant is entitled to a
remand to ask the court to reduce his plea bargain. “The Estrada
rule only answers the question of whether an amended statute
should be applied retroactively. It does not answer the question
of how that statute should be applied.” (Stamps, supra, 9 Cal.5th
at p. 700.)
The People argue defendant is not entitled to a remand
because the trial court did not exercise any discretion in imposing
the upper term sentence and the court “ ‘ “ ‘lacks jurisdiction to
alter the terms of a plea bargain so that it becomes more
favorable to a defendant unless, of course, the parties agree.’ ” ’ ”
(Stamps, supra, 9 Cal.5th at p. 701.) Defendant’s sentence was
part of a plea agreement in which defendant stipulated to the
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factual basis for his plea, agreed to a four-year upper term and
admitted a prior strike conviction.
The Courts of Appeal are currently divided on whether a
defendant who agreed to an upper term sentence as part of a
stipulated plea agreement is entitled to a remand in light of the
passage of Senate Bill No. 567, and the issue is currently under
review by the Supreme Court. (Compare People v. Mitchell
(2022) 83 Cal.App.5th 1051, 1057–1059, review granted Dec. 14,
2022, S277314 [defendant not entitled to remand], People v.
Sallee (2023) 88 Cal.App.5th 330, 334, review granted Apr. 26,
2023, S278690 [same], with People v. Todd (2023) 88 Cal.App.5th
373, 378–382 (Todd), review granted Apr. 26, 2023, S279154
[remand is appropriate remedy]; Fox, supra, 90 Cal.App.5th at
pp. 833–834 [same].)
We need not add to the discussion or choose whether to
follow Mitchell or Fox. Pending further guidance from the
Supreme Court, we conclude that remand is unnecessary given
the circumstances here. In addition to stipulating to an upper
term sentence and a factual basis for the plea, defendant
admitted a prior felony strike conviction. Neither defendant in
Todd or Fox admitted a prior strike conviction in entering into
their respective plea agreements. (Todd, supra, 88 Cal.App.5th
at p. 376; Fox, supra, 90 Cal.App.5th at p. 829.) In light of
defendant’s express admissions as part of his plea agreement, he
was eligible for an upper term sentence under the amended
statutory requirements of Penal Code section 1170,
subdivision (b) and remand is not required. (Fox, at p. 834
[“requirements are satisfied if a defendant stipulates to
aggravating circumstances justifying the upper term”].)
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DISPOSITION
The judgment of conviction is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
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