People v. Todd

Filed 2/15/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049129
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1899027)
v.
DANIEL KEVIN TODD,
Defendant and Appellant.
Defendant Daniel Kevin Todd pleaded no contest to three felony counts of buying
or receiving stolen property. (Pen. Code, § 496, subd. (a).)1 On appeal, Todd contends
that his case should be reversed and remanded for resentencing in light of recent
amendments to section 1170, subdivision (b) by Senate Bill No. 567. (2020-2021 Reg.
Sess.) We reverse the judgment and remand for further proceedings under newly-
amended section 1170.
I. PROCEDURAL BACKGROUND2
On January 21, 2020, Todd pleaded no contest pursuant to a plea agreement to
three counts of buying or receiving stolen property (counts 1, 7, and 8) in exchange for
dismissal of the remaining counts in the information and a stipulated sentence of three
years and eight months. On April 13, 2021, the court imposed the stipulated sentence,
consisting of the upper term of three years on count 1, a consecutive eight-month term on
1
Undesignated statutory references are to the Penal Code.
2
We have omitted the facts of the offense because they are not relevant to the
analysis and disposition of this appeal.
count 7, which was one third of the middle term, and a concurrent upper term of three
years on count 8. Todd timely appealed.
After this case was fully briefed, we requested supplemental briefing from the
parties on the applicability of People v. Mitchell (2022) 83 Cal.App.5th 1051, review
granted Dec. 14, 2022, S277314 (Mitchell),3 to the issue before us. We have considered
that briefing in our analysis here.
II. DISCUSSION
Todd argues that he is entitled to remand for resentencing in light of Senate Bill
No. 567, which amended section 1170, subdivision (b). The Attorney General contends
that although Senate Bill No. 567’s amendments to section 1170, subdivision (b) apply
retroactively here, remand is not warranted because Todd stipulated to an upper-term
sentence as part of his plea bargain. For the reasons we explain below, we determine that
Todd’s case must be remanded for resentencing.
A. Senate Bill No. 567 Applies to Todd Retroactively
At the time of Todd’s sentencing, section 1170, subdivision (b) provided that the
choice between sentencing a defendant to the lower, middle, or upper term “shall rest
within the sound discretion of the court.” (See former § 1170, subd. (b), as amended by
Stats. 2020, ch. 29, § 14.) Effective January 1, 2022, Senate Bill No. 567 amended
section 1170 to make the middle term the presumptive sentence. (People v. Flores
(2022) 75 Cal.App.5th 495, 500; § 1170, subd. (b)(1).) As amended by Senate Bill
No. 597, section 1170, subdivision (b)(2) provides that the trial court may impose a
sentence exceeding the middle term “only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment exceeding the middle
3
Because our Supreme Court granted review in Mitchell, we cite it “for its
persuasive value.” (See Standing Order Exercising Authority Under California Rules of
Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an
Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21; Cal.
Rules of Court, rule 8.115(e)(3) and corresponding Comment, par. 2.).
2
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.” Section 1170, subdivision (b)(3) additionally provides that
“the court may consider the defendant’s prior convictions in determining sentencing
based on a certified record of conviction without submitting the prior convictions to a
jury.”
Todd’s case was not final when the amendments to section 1170 effectuated by
Senate Bill No. 567 took effect. We agree with the parties that Todd is entitled to
retroactive application of the amended statute because it is an ameliorative change in the
law and there is nothing to indicate that the Legislature intended the change to apply only
prospectively. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039 (Flores); In re
Estrada (1965) 63 Cal.2d 740, 745.)
B. Amended Section 1170, Subdivision (b) Applies Despite Todd’s Negotiated
Sentence
Although amended section 1170, subdivision (b) is retroactive in Todd’s case, we
must also determine whether Todd is entitled to any benefit of the amended statute
because his upper-term sentence was the result of a negotiated disposition. Relying on
Mitchell, supra, 83 Cal.App.5th 1051, the Attorney General argues that Todd is not
entitled to the ameliorative effect of section 1170, subdivision (b), and that the trial court
would be precluded from imposing any sentence other than the negotiated upper term of
the sentencing triad were the matter remanded.
In Mitchell, the First District Court of Appeal, Division Five adopted the same
argument advanced by the Attorney General in this case and held that Senate Bill
No. 567’s amendments to section 1170, subdivision (b) are not applicable where a
defendant received an upper-term sentence based upon a negotiated plea bargain.
(Mitchell, supra, 83 Cal.App.5th at pp. 1057-1059.) In its analysis, the Mitchell court
relied heavily on People v. Brooks (2020) 58 Cal.App.5th 1099, where Division Four of
3
the First District Court of Appeal had determined that retroactive relief under amended
section 1170.91 was not available where the sentence was the result of a stipulated plea
agreement. (Mitchell, supra, at p. 1057.) The court agreed with Brooks that a negotiated
plea “ ‘[gives] the court no room to exercise discretion in the selection of a low, middle,
or high term.” (Id. at p. 1058, quoting Brooks at p. 1109.) The court’s sole discretionary
determination is whether to accept the negotiated disposition 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.’ ” (Ibid., quoting People v. Cunningham (1996) 49 Cal.App.4th
1044, 1047.)
Examining the language of amended section 1170, subdivision (b)(1), the Mitchell
court observed that the statute provides the trial court “shall, in its sound discretion, order
imposition of a sentence not to exceed the middle term except as other provided in
paragraph (2).” The court deduced “[t]his language indicates that the statute was not
intended to apply to sentences imposed pursuant to a stipulated plea agreement, as the
trial court lacks discretion to select the sentence in the first place.” (Mitchell, supra, 83
Cal.App.5th at p. 1058.) Because the trial court exercised no triad sentencing discretion
in imposing the sentence under the plea agreement, it could not “effectively withdraw its
approval by later modifying the terms of the agreement it had approved.” (Ibid., quoting
Brooks, supra, 58 Cal.App.5th at p. 1107.) Based on the language of amended section
1170, subdivision (b), its legislative history, and the limitations placed on the trial court’s
discretion when imposing a sentence under a negotiated plea, the Mitchell court
determined there had been no occasion under the stipulated plea to find any aggravated
facts to support imposition of the upper term at the defendant’s sentencing, the court had
exercised no discretion, and therefore the defendant was not entitled to relief under the
statutory changes effected by Senate Bill No. 567. (Mitchell, supra, at p. 1059.)
We respectfully disagree with the rationale of Mitchell and conclude that its
reliance on Brooks is misplaced. Brooks involved the application of section 1170.91, a
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statute that requires consideration of trauma resulting from military service as a
mitigating factor when a court exercises determinate sentencing triad discretion. (Brooks,
supra, 58 Cal.App.5th at p. 1104.) But section 1170, subdivision (b) does not merely add
additional factors to be considered among many in the trial court’s sentencing
determination. It prohibits the imposition of the upper-term sentence absent specific
findings. The court may impose such a sentence “only when there are circumstances in
aggravation of the crime that justify” that choice, and only where “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).) Absent the finding and articulation of such justification and facts, or a
valid waiver of these new requirements, the imposition of the aggravated term is outside
the discretion of the sentencing court under newly-amended section 1170, subdivision
(b). In Brooks, the plea bargain resulted in a sentence that was within the boundaries of
the Penal Code’s sentencing structure. Here, the imposition of the aggravated term
exceeds the court’s authority unless the statutory prerequisites are met or waived because
the aggravated term cannot be imposed absent the court’s finding of those circumstances.
Further, the holding in Mitchell is grounded on a theory of private contractual
enforcement that is free of intrusive modification by the court. (See Mitchell, supra, 83
Cal.App.5th at pp. 1057-1058). But we are required to reconcile the newly-enacted
section 1170, subdivision (b) under the circumstances of a plea bargain with the
Legislature’s passage in 2019 of section 1016.8. Unlike the enforcement of civil
contracts, “[t]he California Supreme Court held in Doe v. Harris (2013) 57 Cal.4th 64that, as a general rule, plea agreements are deemed to incorporate the reserve power of
the state to amend the law or enact additional laws for the public good and in pursuance
of public policy. That the parties enter into a plea agreement does not have the effect of
insulating them from changes in the law that the Legislature has intended to apply to
them.” (§ 1016.8, subd. (a)(1).) Therefore, “[a] plea bargain that requires a defendant to
5
generally waive unknown future benefits of legislative enactments, initiatives, appellate
decisions, or other changes in the law that may occur after the date of the plea is not
knowing and intelligent.” (§ 1016.8, subd. (a)(4).)
There is no question that the negotiated disposition here qualifies as a plea bargain
under section 1016.8. Section 1016.8, subdivision (c) states that “[f]or purposes of this
section, ‘plea bargain’ has the same meaning as defined in subdivision (b) of section
1192.7.” (§ 1016.8, subd. (c)). Section 1192.7 in turn defines plea bargaining as “any
bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel,
and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo
contendere, in exchange for any promises, commitments, concessions, assurances, or
consideration by the prosecuting attorney or judge relating to any charge against the
defendant or to the sentencing of the defendant.” (§ 1192.7, subd. (b).) Thus under
section 1016.8, the fact that the parties in this case entered into a plea agreement that was
accepted by the sentencing court “does not have the effect of insulating them” from these
retroactive changes enacted by Senate Bill No. 567. (§ 1016.8, subd. (a)(1).) We are
persuaded that were we to adopt the reasoning of the court in Mitchell, we would render
Todd’s plea bargain to a stipulated sentence the very waiver of “unknown future benefits
of legislative enactments” that the Legislature has deemed void as against public policy
because his entry of plea on those terms was not “knowing and intelligent.” (See
§ 1016.8, subd. (a)(4).)
We are further persuaded that Senate Bill No. 567 should be given effect here
because the Legislature declined to limit the retroactive effect of this legislation, which
indicates its intent that the parties be bound by its amendment to the sentencing provision
and honor section 1016.8. (See Flores, supra, 73 Cal.App.5th at p. 1039.) The
Legislature is aware of its authority to expand and contract the retroactive effect of its
amendments to the sentencing laws, as it has elected in certain instances to explicitly
include or exclude categories of offenders from the ameliorative benefits of its
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enactments. (See, e.g., Sen. Bill No. 81 (2021-2022 Reg. Sess.) [limiting section 1385,
subdivision (c) dismissal of enhancements in the furtherance of justice to “sentencings
occurring after January 1, 2022”]; Sen. Bill No. 775 (2021-2022 Reg. Sess.) [amending
section 1172.6. to allow a person “whose conviction is not final” to challenge a
conviction under the felony murder statute and natural and probable consequences
doctrine of homicide under Sen. Bill No. 1437 (2017-2018 Reg. Sess.)].)
The Mitchell decision appropriately underscores the primacy of the plea agreement
against discretionary judicial interference, other than acceptance or rejection. (Mitchell,
supra, 83 Cal.App.5th at p. 1058.) But the relevant question here is not whether the
sentencing judge is bound by the parties’ stipulated sentence, but whether Todd is entitled
to the ameliorative effect of Senate Bill No. 567’s new sentencing provisions. We agree
with Todd that People v. Stamps (2020) 9 Cal.5th 685 (Stamps) is instructive here. In
Stamps, the defendant, who had pled guilty in exchange for a specified term, requested
that his case be remanded so that the trial court could consider striking his serious felony
prior conviction under newly-amended section 1385, subdivision (a), which went into
effect while his appeal was pending. (Stamps, supra, 9 Cal.5th at p. 692.) Despite
Stamps’s admission of the five-year prior conviction as part of a negotiated disposition,
because the new provision applied retroactively on appeal, the Supreme Court determined
that the defendant should be given the opportunity to seek the court’s exercise of its
newly-authorized discretion under the amended section 1385. (Id. at p. 707.) To be sure,
Stamps concluded that the defendant was entitled to seek the exercise of the trial court’s
new discretionary authority. Here, we consider a statutory amendment that proscribes the
negotiated sentence agreed upon by the parties and accepted by the court absent certain
conditions itemized in the new law. But with respect to the application of section 1016.8,
subdivision (a)(4), we perceive no reason to treat the two circumstances differently. As
in Stamps, Todd is entitled to remand for resentencing in compliance with amended
section 1170, subdivision (b).
7
For these reasons, we conclude that Todd’s sentence to the aggravated term as a
condition of his negotiated plea agreement does not negate the requirements imposed on
the court by amended section 1170, subdivision (b), which is retroactively applicable to
him. The trial court sentenced Todd to the upper term based solely on the fact that the
sentence was a term of his negotiated plea agreement. It did not state on the record that it
relied upon any aggravating factors when sentencing Todd to that term. Because the
court’s imposition of the aggravated term does not comply with the requirements of
section 1170, subdivision (b), as amended by Senate Bill No. 567, remand for
resentencing is not futile, as the Attorney General contends, but is necessary for the trial
court to comply with the new mandates of section 1170, subdivision (b).
C. On Remand, Absent Todd’s Waiver, the Trial Court Must Invoke the
Requirements of section 1170, subdivision (b)(2) and (3)
Because the trial court did not make the determination required under section
1170, subdivision (b)(1), we must remand the matter to permit Todd to waive or invoke
the requirements of section 1170, subdivision (b). On remand, the trial must determine
whether it can give effect to the parties’ negotiated agreement under the sentencing
constraints we describe in this opinion.
As in Stamps, Todd may choose to freely and voluntarily waive the requirements
of section 1170, subdivision (b)(2) and (3) and accept the plea bargain. If Todd does not
so waive, the trial court must determine whether there are circumstances in aggravation
as described in section 1170, subdivision (b)(2) and (3) that justify the imposition of the
upper term sentence under the plea bargain and state its facts and reasons on the record.
If the trial court concludes that there are no circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding the middle term, it cannot
impose the upper term. Absent a waiver from Todd, the facts to justify the imposition of
the upper term must comply with the requirements of section 1170, subdivision (b)(2)
and (3), i.e., be garnered from the parties’ stipulation, or result from the defendant’s prior
8
convictions based on a certified record of conviction, if any, or from facts “found true
beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170,
subd. (b)(2), (3).)
Since under the terms of the plea agreement, no term other than the upper term
may be imposed, and the trial court is not authorized to unilaterally modify the plea
agreement, unless Todd waives the requirements of the statute, if the trial court does not
find circumstances to justify the imposition of the aggravated term as outlined in
amended section 1170, subdivision (b), the only remedy available to the trial court is to
withdraw approval for the plea agreement and return the parties to the status quo.
(Stamps, supra, 9 Cal.5th at p. 707.)
We recognize that this process creates a new burden for the trial courts that was
perhaps unanticipated with the adoption of Senate Bill No. 567. However, we see no
other reasonable interpretation that reconciles the statutes before us.
III. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing under Penal
Code section 1170, subdivision (b), as amended by Senate Bill No. 567.4
4
Because the judgment is reversed we do not address the parties’ arguments that:
(1) the sentence to the concurrent upper term in count 8 is harmless; and (2) clerical
errors in the abstract of judgment must be corrected.
9
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Lie, J.
______________________________________
Wilson, J.
People v. Todd
H049129
Trial Court: Santa Clara County Superior Court
Superior Court No.: C1899027
Trial Judge: The Honorable Matthew S. Harris
Attorneys for Defendant and Appellant Gordon B. Scott
DANIEL KEVIN TODD: under appointment by the Court
of Appeal for Appellant
Attorneys for Plaintiff and Respondent Rob Bonta,
THE PEOPLE: Attorney General of California
Lance E. Winters,
Chief Assistant Attorney General
Jeffrey M. Laurence,
Senior Assistant Attorney General
Donna M. Provenzano,
Supervising Deputy Attorney
General
Victoria Ratnikova,
Deputy Attorney General
H049129
People v. Todd
11