People v. Johnson CA2/1

Filed 1/25/23 P. v. Johnson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B319217
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA485567)
v.
RASHAUN QUINTEL JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Affirmed.
William Paul Melcher, 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 Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
After entering a plea agreement, defendant Rashaun
Quintel Johnson pleaded guilty and received an agreed upon
sentence that included an upper term of imprisonment on one
count. Pursuant to the plea agreement, the court sentenced him
to four years and eight months imprisonment, but suspended
imposition of sentence and placed him on probation. Less than a
week after his sentencing, defendant robbed and assaulted a taxi
driver. Defendant’s probation was promptly revoked, and the
suspended prison sentence executed.
Defendant now appeals, arguing that two recent
amendments to Penal Code section 1170 require remand for
resentencing.1 We disagree that these amendments apply to plea
agreements with stipulated sentences such as the one defendant
entered, and affirm.
BACKGROUND
Defendant was charged by an information filed by the Los
Angeles County District Attorney’s Office with criminal threats
(§ 422, subd. (a); count 1) and corporal injury on a spouse
(§ 273.5, subd. (a); count 2). It was further alleged that
defendant had suffered a serious or violent conviction within the
meaning of sections 667, subdivisions (a)(1), (b) through (j), and
1170.12, subdivision (b). Defendant pleaded not guilty and
denied the special allegations.
On July 8, 2021, defendant pleaded no contest to both
counts in the information. Pursuant to the parties’ plea
agreement, the court sentenced defendant to the upper term of
four years on count 2 and a consecutive sentence of eight months,
1 Undesignated statutory references are to the Penal Code.
2
i.e., one-third the midterm sentence of two years, on count 1.
Imposition of sentence was suspended and defendant was placed
on three years formal probation subject to certain conditions,
including that defendant obey all laws. During the plea colloquy,
defendant stated that he understood if he violated probation he
would be sentenced to four years and eight months in state
prison. Defendant was given 642 days of presentence custody
credit (321 days actual and 321 days conduct).
On July 13, 2021, defendant got into a taxi parked at a
hotel. Defendant told the driver, Mahabub Sadek, “Go.” Sadek
could not yet drive away because there were pedestrians in the
way, and told defendant this fact. Defendant replied by using the
“F” word, saying “This is my country,” and leaning over into the
front seat of the taxi. Sadek called his dispatcher and said he did
not feel safe. The dispatcher told defendant to get out of the taxi.
When defendant refused, Sadek drove to a nearby police station;
while Sadek did so, defendant took Sadek’s taxi permit from
inside the car. When Sadek parked in front of the police station,
defendant got out of the taxi and started to walk away with the
permit. Sadek stood in front of defendant and said, “Hey, can I
have my permit?” Defendant told Sadek to go back to the taxi,
then with his left shoulder hit Sadek in the head.
Defendant was thereafter arrested, charged with robbery,
and held without bail. On July 15, 2021, the district attorney
filed a motion requesting revocation of defendant’s probation in
the just concluded domestic violence matter. Also on July 15,
2021, after a court appearance on the probation revocation,
defendant ignored commands from a Los Angeles County
Sheriff’s Deputy in the courthouse lockup and attempted to run
out the bus bay door before he was transported back to jail. The
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lockup deputy pursued defendant, and defendant was eventually
apprehended near the street exit gate.
On February 1, 2022, the court held a probation revocation
hearing after which defendant’s probation was revoked and his
prison sentence reinstated. On the prosecutor’s motion,
defendant’s separately filed case for the July 13, 2021 robbery
was dismissed pursuant to section 1385.
Defendant thereafter filed a timely notice of appeal.
DISCUSSION
Defendant argues that two recent amendments to section
1170—Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill
567) and Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly
Bill 124)—apply retroactively to his case, and this matter should
be remanded for resentencing proceedings. The Attorney General
agrees Senate Bill 567 and Assembly Bill 124 have retroactive
application to nonfinal judgments, but argues defendant’s
sentence should be affirmed because these recent enactments do
not apply to agreed upon sentences imposed pursuant to plea
agreements.
A. Standard of Review
We review a trial court’s sentencing decisions for abuse of
discretion, evaluating whether the court exercised its discretion
“in a manner that is not arbitrary and capricious, that is
consistent with the letter and spirit of the law, and that is based
upon an ‘individualized consideration of the offense, the offender,
and the public interest.’ ” (People v. Sandoval (2007) 41 Cal.4th
825, 847.) “A failure to exercise discretion also may constitute an
abuse of discretion.” (Id. at pp. 847-848.)
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To the extent resolution of defendant’s claims requires
statutory interpretation, our review of such questions is de novo.
(In re R.T. (2017) 3 Cal.5th 622, 627.) We begin by examining the
ordinary meaning of the statutory language. (Ibid.) If the
statutory language is unambiguous, that ordinary meaning
controls. (J.M. v. Huntington Beach Union High School Dist.
(2017) 2 Cal.5th 648, 654.) We also consider the statutory
scheme’s overall structure to determine what interpretation best
advances the Legislature’s underlying purpose. (In re R.T.,
supra, at p. 627.) If there is any ambiguity in the statutory
language, we may consider the statute’s legislative history.
(Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 830.)
B. Amendments to Section 1170
At the time defendant was sentenced, section 1170,
subdivision (b) provided that when a penal statute specified three
possible imprisonment terms (lower, middle, and upper), the trial
court generally had broad discretion to select the term from that
triad that best served the interests of justice. (Former § 1170,
subd. (b).) The trial court was further required to specify the
reasons for its sentencing decision. (Ibid.)
After defendant was sentenced and had his probation
revoked, the Legislature made certain changes to section 1170 of
relevance to this appeal. Senate Bill 567 amended section 1170
to state that “[w]hen a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court
shall, in its sound discretion, order imposition of a sentence not to
exceed the middle term” unless certain circumstances apply. (See
Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1) & (2).)
Under Senate Bill 567, “[t]he court may impose a sentence
exceeding the middle term only when there are circumstances in
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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)(2).)
Assembly Bill 124 amended section 1170 to add that
“unless the court finds that the aggravating circumstances
outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice, the court
shall order imposition of the lower term” if certain factors were “a
contributing factor in the commission of the offense.” (Stats.
2021, ch. 695, § 5.1, adding § 1170, subd. (b)(6).) As relevant
here, those factors include the defendant having “experienced
psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence.”
(§ 1170, subd. (b)(6)(A).)
The parties agree and we concur that the changes to section
1170 made by Senate Bill 567 and Assembly Bill 124 apply
retroactively to nonfinal judgments because they operate to
reduce punishment, and there is no evidence to rebut the
presumption of retroactivity. (E.g., People v. Flores (2022) 73
Cal.App.5th 1032, 1039.)
C. Senate Bill 567 Does Not Apply to Defendant’s Plea
Agreement
Defendant claims Senate Bill 567 requires that aggravating
circumstances justifying imposition of an upper term sentence be
established either by a stipulation from the defendant or by a
finding at trial beyond a reasonable doubt in every case, whether
that matter is resolved by plea agreement or contested trial.
6
Because that did not happen here, defendant argues, remand for
resentencing is required. Defendant acknowledges the probation
department identified multiple aggravating factors justifying an
upper term sentence including numerous prior convictions, the
underlying offense involving “great violence,” and his
unsatisfactory performance on probation. Defendant points out
that he did not stipulate to any of these factors, nor were they
found true beyond a reasonable doubt at trial. Nor did the trial
court specify any aggravating factors as justifying the upper term
sentence; it instead stated it was sentencing defendant “per the
plea agreement.”
As there is no indication defendant intends to stipulate to
any aggravating factors (given that such a concession would
render resentencing an empty exercise), defendant seeks a
remand for trial at which the People will need to prove the
aggravating circumstance(s) beyond a reasonable doubt. If they
do so, defendant agrees the court can reimpose the same sentence
agreed to in the plea deal. If they do not, and the court cannot
impose the agreed upon sentence, defendant asserts both
defendant and the People should then have an opportunity to
withdraw from the plea agreement.
Defendant’s argument was recently rejected in People v.
Mitchell (2022) 83 Cal.App.5th 1051 (Mitchell), review granted
December 14, 2022, S277314, which found Senate Bill 567 does
not apply to stipulated sentences imposed pursuant to a plea
agreement. The plain language of Senate Bill 567 indicates that
it applies when the court chooses between the three possible
terms of imprisonment “in its sound discretion.” (§ 1170, subd.
(b)(1).) Mitchell found this statutory language inapplicable to
plea agreements with stipulated sentences because, when
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sentencing pursuant to such agreements, a trial court does not
exercise any discretion under section 1170 in deciding whether
imposition of the upper, middle, or lower term would best serve
the interests of justice. (Mitchell, supra, at p. 1058.) Once a plea
is agreed upon and approved, the court “may not proceed as to
the plea other than as specified in the plea.” (§ 1192.5, subd. (b).)
Thus, “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’ ” (Mitchell, supra, at p. 1058,
quoting People v. Cunningham (1996) 49 Cal.App.4th 1044,
1047), such as by varying the agreed upon term of imprisonment.
The Mitchell court further concluded that even if there was
some ambiguity in the statutory language, the legislative history
supported the conclusion that Senate Bill 567 was not meant to
apply to plea agreements with stipulated sentences. Senate Bill
567 is one in a series of changes to section 1170 following
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856,
166 L.Ed.2d 856] (Cunningham). In Cunningham, the United
States Supreme Court held a prior version of section 1170
unconstitutional because “under the Sixth Amendment, any fact
that exposes a defendant to a greater potential sentence must be
found by a jury, not a judge, and established beyond a reasonable
doubt, not merely by a preponderance of the evidence.”
(Cunningham, supra, at p. 281.)
The legislative history shows Senate Bill 567’s author
“discussed the history of section 1170, subdivision (b), beginning
with its pre-2007 version that allowed trial courts the discretion
to find aggravating circumstances to impose the upper term, the
decision in [Cunningham] which held that this provision violated
8
the Sixth Amendment, and the passage of Senate Bill No. 40
(2007-2008 Reg. Sess.) . . . , which created former section 1170,
subdivision (b). (Assem. Com. on Public Safety, Analysis of Sen.
Bill. No. 567 (2021-2022 Reg. Sess.) as amended May 20, 2021,
p. 3.) The author then noted that Senate Bill 567 would ensure
‘ “that aggravating facts are presented to the jury before a judge
imposes a maximum sentence as decided in [Cunningham]” ’ and
that ‘ “individuals facing time have the ample ability to dispute
information in the record that might not be true.” ’ (Assem. Com.
on Public Safety, Analysis of Sen. Bill. No. 567 (2021-2022 Reg.
Sess.) as amended May 20, 2021, p. 3.)” (Mitchell, supra, 83
Cal.App.5th at p. 1059.)
As Mitchell observed, when there is a plea agreement with
a stipulated sentence, there is no occasion for the court to have a
hearing or trial at which aggravating facts are disputed.
(Mitchell, supra, 83 Cal.App.5th at p. 1059.) “Further, in
entering into the plea, [defendant] knowingly waived [his] rights
to both a jury trial and court trial. Therefore, the concern raised
in [Cunningham] that a defendant’s Sixth Amendment rights are
violated when aggravating facts to support an upper term
sentence are not found by a jury beyond a reasonable doubt does
not exist here.” (Ibid.)
We find the reasoning of Mitchell persuasive. “[W]hen 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.”
(People v. King (2020) 52 Cal.App.5th 783, 791.) Given the
court’s decision to accept the plea agreement (and therefore be
bound by its terms), the court here did not have triad sentencing
9
discretion to exercise. Indeed, in addition to being barred by
section 1192, subdivision (b), any such exercise of discretion
would necessarily disrupt the certainty a stipulated sentence plea
agreement provides both to the defendant and the People.
Defendant’s argument further would require us to conclude
that Senate Bill 567 was sub rosa intended to fundamentally
restructure the plea process—particularly in no contest pleas
such as the one before us. When parties enter a no contest plea
agreement, the defendant does not stipulate or admit to a factual
basis for the offense or related sentencing factors; instead, the
defendant makes a plea “nolo contendre” (literally “I will not
contest it”) where any statements the defendant makes in
response to the court’s questions about the voluntariness of the
plea and its factual basis “may not be used against the defendant
as an admission in any civil suit based upon or growing out of the
act upon which the criminal prosecution is based.” (§ 1016,
subd. (3); see also 4 Witkin & Epstein, California Criminal Law
(4th ed. 2012) Pretrial Proceedings, § 292.)
Using this case as an example, when presented with a no
contest plea agreement including an upper end stipulated
sentence (which by virtue of being a nolo contendere plea would
not include any factual stipulations by the defendant), under
defendant’s reading of Senate Bill 567 the trial court would have
no alternative other than to have a trial at which either a jury or
the court (if the plea agreement jury trial waiver extended to the
aggravating circumstances issue) found aggravating
circumstance(s) beyond a reasonable doubt.2 If that finding was
2One might argue that if the no contest plea agreement
waived any right to a jury trial, the court could inquire of the
defendant regarding the factual basis for the aggravating
10
made, the plea could be accepted and sentence imposed. If that
finding was not made, the sentence could not be imposed, the
plea agreement would be rejected, and the parties would have to
start from scratch.
To borrow a phrase from an analogous case involving
another recent sentencing related amendment, nothing in Senate
Bill 567 “suggests an intent to overturn, sub silentio, long-
standing plea-bargaining law binding courts to the agreements
they approve” (People v. Brooks (2020) 58 Cal.App.5th 1099,
1107), or the process courts have traditionally followed to approve
(or disapprove) such agreements. “[T]he process of plea
negotiation ‘contemplates an agreement negotiated by the People
and the defendant and approved by the court.’ ” (People v. Segura
(2008) 44 Cal.4th 921, 929-930.) If the court does not believe the
agreed-upon disposition is fair to the public, the defendant, and
the victim(s), the court can disapprove the bargain reached
between the prosecution and the defendant. (Id. at p. 931; see
also In re Alvernaz (1992) 2 Cal.4th 924, 941.) The court’s power
to disapprove a plea agreement continues up until sentencing.
(People v. Mora-Duran (2020) 45 Cal.App.5th 589, 595-596.)
That approval process, however, does not include a trial—
one of the things a plea agreement is designed to avoid. Neither
the statutory language or its legislative history suggests the
Legislature intended to obviate the benefits of plea bargaining to
circumstance(s) during the plea colloquy, and if satisfied make a
finding that any such factors were shown beyond a reasonable
doubt. Such an additional plea colloquy, however, does not
appear to constitute a “trial” as that term is used in Senate Bill
567, nor would it include the types of things associated with a
trial such as the defendant’s right to call and examine witnesses.
11
the People, defendants, victims, witnesses, and busy trial courts
by creating a process where any upper term stipulated sentence
in a no contest plea matter such as this would require a trial and
findings beyond a reasonable doubt prior to the court’s
acceptance of the plea agreement.
We find unpersuasive defendant’s contention that People v.
Stamps (2020) 9 Cal.5th 685 (Stamps) requires resentencing
here. In that case, the defendant entered a plea agreement that
included a prior serious felony enhancement under section 667,
subdivision (a). (Stamps, supra, at p. 692.) While his appeal was
pending, section 1385, subdivision (a) was amended to permit
trial courts to strike such enhancements. Because the defendant
had a newfound opportunity to advocate for striking the prior
serious felony enhancement that did not exist when the plea
agreement was negotiated, Stamps found the defendant “should
be given the opportunity to seek the court’s exercise of its section
1385 discretion.” (Stamps, supra, at p. 707.) It found the
defendant should be given this opportunity because of the trial
court’s role in approving (or disapproving) the plea agreement
based on factors including its fairness. (Id. at p. 706.) If on
remand the court declined to exercise its discretion, the agreed
upon sentence would stand. If the court was inclined to exercise
its discretion to strike the enhancement, the People would either
have to agree to modify the plea agreement or withdraw from it.
(Id. at p. 707.)
Stamps permitted the defendant to revisit a stipulated plea
agreement because the amendment at issue in that case gave the
sentencing court authority to dismiss an enhancement that did
not exist at the time of the plea agreement. Broad new authority
to dismiss an enhancement in the interests of justice is distinct
12
from the changes made by Senate Bill 567, which did not grant
unfettered discretion to reconsider an enhancement that could in
turn affect the court’s approval of the plea bargain. Senate Bill
567 simply requires aggravating factors now be shown beyond a
reasonable doubt before imposition of an upper term sentence,
and only insofar as the court is permitted to exercise discretion in
the selection of a low, middle, or high term from within the
applicable sentencing triad. Because the sentencing court had
authority to impose an upper term sentence before Senate Bill
567 pursuant to agreement without special findings being made,
and still has that same authority today, there has been no change
in the criteria that impact the sentencing court’s approval of a
plea agreement that necessitates resentencing here.
D. Assembly Bill 124 Does Not Apply to Defendant’s
Plea Agreement
At the revocation hearing, defense counsel argued
defendant’s probation in the domestic violence case should be
reinstated. In support of this position, defense counsel proffered
that defendant had suffered childhood trauma—namely that his
nose was broken at age five by his great grandmother, after
which he grew up in multiple foster care homes until he aged out
of the system. Counsel also pointed out that defendant continued
to struggle with mental illness. The court acknowledged these
facts, noting “the terribly bad circumstances of [defendant’s]
youth and experiencing childhood trauma.” The court, however,
declined to reinstate probation and ordered suspension of the
prison term lifted, stating its decision was based on a re-review of
the preliminary hearing transcript in the underlying domestic
violence case, that this was not defendant’s first offense involving
violence, defendant’s almost immediate failure to comply with
13
probationary terms, and the court’s lack of confidence that
defendant would not use force or violence against another person
if there was no consequence for his actions.
As noted above, Assembly Bill 124 amended section 1170 to
add subdivision (b)(6), which creates a presumption in favor of
the low term when a defendant has experienced “psychological,
physical, or childhood trauma, including, but not limited to,
abuse, neglect, exploitation, or sexual violence.” (Stats. 2021,
ch. 695, § 5.1, adding § 1170, subd. (b)(6)(A).) Overcoming that
presumption requires that “the court find[ ] that the aggravating
circumstances outweigh [such] mitigating circumstances.”
(§ 1170, subd. (b)(6).) Similar to his argument concerning Senate
Bill 567, defendant asserts the trial court did not make the
required findings of aggravating circumstances at the time he
was sentenced, and therefore he is entitled to a new sentencing
hearing at which the court can engage in weighing his mitigation
evidence against the aggravating circumstances.
We reject this argument for the reasons set forth above.
The statutory language provides that section 1170, subdivision
(b)(6) applies when a court exercises sentencing discretion.
(People v. Kelly (2022) ___ Cal.App.5th ___ [2022 WL 17984118 at
pp. *3, *4] [Assem. Bill 124 inapplicable to a defendant who pled
guilty pursuant to plea agreement with a stipulated sentence
because trial court had no discretion to depart from the
stipulated sentence regardless of whether the defendant had
experienced psychological, physical, or childhood trauma within
the meaning of § 1170, subd. (b)(6)(A)].) The court here did not
(and could not) exercise such discretion when sentencing because
it had decided to accept the plea agreement between the parties
14
and be bound (like the parties) to the agreement.3 Indeed, the
court could not exercise such discretion here given the constraints
imposed by section 1192.5, subdivision (b). Finally, as with
Senate Bill 567, defendant’s argument presupposes that
Assembly Bill 124 was intended to restructure the no contest plea
process in his case to require a pre-sentencing trial where the
finder of fact determines the existence of aggravating
circumstance(s) beyond a reasonable doubt before any agreed
upon sentence above the low term is imposed. Defendant
presents nothing to suggest the Legislature intended Assembly
Bill 124 to create such a disruptive and time-consuming change
to the plea bargaining process.
3 Defendant’s reliance on People v. Flores, supra, 73
Cal.App.5th 1032 is misplaced. In that case, the Court of Appeal
held resentencing was required under Assembly Bill 124 when
the defendant pleaded guilty pursuant to a plea agreement and
was under the age of 26 when he committed the crime. (See
§ 1170, subd. (b)(6)(B).) The critical difference is that in Flores,
the defendant’s plea was open with no agreed determinate
sentence, and therefore the court did exercise discretion when
imposing sentence. (Flores, supra, at pp. 1036-1037.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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