People v. Weldon CA2/6 ( 2023 )

Filed 12/21/23 P. v. Weldon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B321956
(Super. Ct. No. 21CR00636)
Plaintiff and Respondent, (Santa Barbara County)
v.
DENNIS ANTHONY
WELDON,
Defendant and Appellant.
Dennis Anthony Weldon pleaded no contest to resisting
arrest (Pen. Code,1 § 69) and attempted criminal threats (§§ 422,
664). Pursuant to a negotiated dispostion, the trial court imposed
a stipulated sentence of the upper term of three years for
resisting arrest and four months for attempted criminal threats.
Appellant was released on probation. This was a very lenient
disposition. He was facing a mandatory prison sentence. And it
1 Further unspecified statutory references are to the Penal
Code.
seems obvious that the trial court wanted a “sword of Damocles”
hanging over appellant’s head to “catch his attention.” As we
explain, this did not work.
Appellant contends his sentence must be vacated and
remanded for a new hearing because Senate Bill No. 567, which
amended section 1170, applies to his case. We disagree.
FACTS AND PROCEDURAL HISTORY
Appellant was arrested for disturbing the peace at a
veteran’s clinic. During the arrest, he refused to walk to the
patrol car and threatened to kill not only the arresting sheriff’s
deputy, but his family as well. During a search, deputies found a
knife in appellant’s jacket pocket.
As well as the substantive offenses, it was alleged that
appellant had two prior strike convictions (§667, subds. (d)(1) &
(e)(1)). It also alleged that he was ineligible for probation
pursuant to section 1203, subdivision (e)(4) and that he had been
convicted of a serious felony pursuant to section 1170, subdivision
(h)(3).
Pursuant to a negotiated plea agreement, the trial court
imposed the upper term of three years pursuant to the agreement
of the People and appellant.
One of the terms of probation was that appellant abstain
from alcohol. But two months later, sheriff’s deputies responded
to a domestic dispute involving appellant. The deputies noticed
appellant’s speech was slurred and his eyes were glassy. They
arrested appellant and administered a preliminary alcohol
screening test. Appellant’s blood alcohol content was 0.043.
Following a hearing, the trial court found appellamt
violated probation. It imposed the previously suspended term of
three years four months in state prison. The trial court noted
2
that defense counsel “can take a look at the question of whether
[the] upper term is appropriate given the circumstances, but it
was the selected sentence at the time [appellant was] put on
probation, and the sentence can always be recalled if the law is
clear and the circumstances are clear, but at this point I’m going
to follow through with the previously suspended sentence, three
years and four months.”2
DISCUSSION
Senate Bill 567 amended section 1170 such that the middle
term is now the presumptive term of imprisonment. Pursuant to
this newly amended law, the trial court “shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term” 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.” (§ 1170, subd. (b)(1), (2).)
Here, by reason of the stipulation, appellant consented to,
i.e., agreed to, the upper term. Phrased otherwise, appellant
agreed that there were “circumstances in aggravation.” He
certainly did not object thereto because he was a candidate for
prison. He should be estopped to now claim refuge under the
Senate Bill 567 umbrella. In the presenting situation, the trial
court has no discretion to impose any term other than what was
agreed to. Were we to agree with appellant, we would have to
2 This statement is enigmatic. The trial court could not
alter the terms of a previously imposed sentence with execution
of the sentence suspended. (People v. Howard (1997) 16 Cal.4th
1081, 1087.)
3
erase appellant’s signature from the written negotiated
disposition and his oral agreement in the reporter’s transcript.
This is referred to in the case law as the defendant not being
allowed to “trifle” with the court. (E.g., People v. Hester (2000) 22
Cal.4th 290, 295.)
Nevertheless, appellant contends we must vacate his
sentence and remand the matter because he did not stipulate to
the facts underlying the aggravated circumstances nor were they
proven beyond a reasonable doubt as required by amended
section 1170, subdivision (b). The Attorney General argues
Senate Bill 567 applies retroactively (In re Estrada (1965) 63
Cal.2d 740, 745), but contends Senate Bill 567 is inapplicable
because the trial court had no discretion to impose a sentence
other than the stipulated sentence.
Currently the Courts of Appeal are split on whether a
defendant, like appellant, who received an upper term sentence
pursuant to a plea agreement is entitled to remand because of
Senate Bill 567. This issue is pending before our Supreme Court.
(People v. Todd (2023) 88 Cal.App.5th 373, 381-382 [defendant
entitled to remand], review granted Apr. 26, 2023, S279154;
People v. Fox (2023) 90 Cal.App.5th 826, 835 [same]; People v.
Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059 [defendant not
entitled to remand], review granted Dec. 14, 2022, S277314
(Mitchell); People v. Sallee (2023) 88 Cal.App.5th 330, 340-341
[same], review granted Apr. 26, 2023, S278690 (Sallee).)
We have considered these cases and the alternate
approaches. We disagree with Todd and Fox and conclude that
there is no need for remand. Appellant agreed to the upper term
and given his dismal criminal history, this was a substantial
4
concession. To further lessen his sentence now seems a bounty in
excess of which he is entitled.
In People v. Mitchell, supra, the Court of Appeal observed
that the language of amended section 1170, subdivision (b)(1)
states that the trial court “ ‘shall, in its sound discretion, order
imposition of a sentence not to exceed the middle term.’ ”
(Mitchell, at p. 1058.) The Mitchell court reasoned that the plain
language thus “indicates that the statute was not intended to
apply to sentences imposed pursuant to a stipulated plea
agreement,” in which the trial court lacked discretion to select
the sentence and was limited to either accepting or rejecting the
plea agreement. (Ibid.; see also Sallee, supra, 88 Cal.App.5th at
pp. 338-340 [“the amendments to section 1170 . . . are
inapplicable under the plain language of the statute”].) The rule
and rational of People v. Mitchell, supra, makes common sense
and actually comports with the practical considerations which
are at play in any negotiated disposition.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
I concur:
GILBERT, P. J.
5
BALTODANO, J., Dissenting:
I respectfully dissent. In my view, Senate Bill No. 567
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill
567) applies to Weldon’s stipulated sentence. This issue is
pending before our Supreme Court and the Courts of Appeal are
split on this issue. (People v. Todd (2023) 88 Cal.App.5th 373,
381-382 [defendant entitled to remand], review granted Apr. 26,
2023, S279154; People v. Fox (2023) 90 Cal.App.5th 826, 835
[same]; People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059
[defendant not entitled to remand], review granted Dec. 14, 2022,
S277314; People v. Sallee (2023) 88 Cal.App.5th 330, 340-341
[same], review granted Apr. 26, 2023, S278690.) The importance
of this issue cannot be understated. A substantial number of
criminal cases are resolved through plea-bargained sentences
(see People v. West (1970) 3 Cal.3d 595, 604-605). I agree with
Todd and Fox and conclude this case should be remanded.
“[T]he question of how an ameliorative statute applies to
plea-bargained sentences is one of legislative intent.” (People v.
Carter (Dec. 8, 2023, D082219) __ Cal.App.5th __ [2023 WL
8518903 at p. *9].) Scrutinizing plea-bargained upper term
sentences is consistent with Senate Bill 567’s legislative intent to
ensure that “the harshest sentences receive the greatest scrutiny
and justification before they are meted out.” (Assem. Com. on
Public Safety, Rep. on Sen. Bill No. 567 (2021–2022 Reg. Sess.) as
amended May 20, 2021, p. 3.) The need for increased judicial
oversight of plea-bargained sentences is particularly important
here. Although the probation department recommended the
middle term, the court imposed the upper term without
indicating why it was doing so. Plea-bargained sentences should
not relegate trial judges to the status of potted plants.
1
I disagree with the Attorney General that Senate Bill 567
is inapplicable because the trial court had no discretion to impose
a sentence other than the stipulated sentence. Judges are
required, “in their sound discretion,” to impose a sentence not to
exceed the middle term unless the sentence complies with Penal
Code section 1170, subdivision (b)(2). (Cal. Rules of Court,1 rule
4.420.) And when imposing a prison sentence, a trial judge must
review the probation department’s presentence investigation
report and consider circumstances in aggravation. (Rules
4.411.5, 4.421.) That report must include an “evaluation of
factors relating to disposition” and “reasoned discussion of
aggravating and mitigating factors affecting the sentence length.”
(Rule 4.411.5(a)(9)(B).) A stipulated sentence is not a factor in
aggravation. I would vacate Weldon’s sentence and remand for
resentencing consistent with the current version of Penal Code
section 1170, subdivision (b).
NOT TO BE PUBLISHED.
BALTODANO, J.
1 Further unspecified references to rules are to the
California Rules of Court.
2
Brian E. Hill, Judge
Superior Court County of Santa Barbara
______________________________
Christina J. Alvarez, 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, J. Michael Lehmann and
Lindsay Boyd, Deputy Attorneys General, for Plaintiff and
Respondent.