People v. Williams CA5 ( 2022 )

Filed 6/14/22 P. v. Williams CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081466
Plaintiff and Respondent,
(Super. Ct. No. 19CMS2060)
v.
AHKEEM DEISHAVAR WILLIAMS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Steven D.
Barnes, Judge.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Stephanie
A. Mitchell, Kari Ricci Mueller and Eric L. Christoffersen, Deputy Attorneys General,
for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Smith, J.
Defendant Ahkeem Deishavar Williams pled guilty to the charge of making
criminal threats and admitted a prior “strike” conviction within the meaning of the
“Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).1 On
appeal, defendant contends that (1) his trial counsel was ineffective for failing to
correctly inform him of the limitations on his custody credit earning potential caused by
admission of a prior strike conviction, (2) his substitute counsel was ineffective in failing
to file a motion to withdraw defendant’s guilty plea, and (3) his sentence must be vacated
and his case remanded for resentencing in light of Senate Bill No. 567’s (2021–2022 Reg.
Sess.) (Senate Bill 567) amendments to section 1170, subdivision (b). The People
disagree on all accounts. We vacate defendant’s sentence and remand for further
proceedings pursuant to section 1170, subdivision (b).
PROCEDURAL SUMMARY
On May 28, 2019, the Kings County District Attorney filed an information,
charging defendant with making criminal threats (§ 422, subd. (a); count 1),
misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 2), and misdemeanor
trespassing (§ 602, subd. (q); count 3). As to count 1, the information further alleged that
defendant had suffered a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)) which also qualified as a serious felony conviction (§ 667, subd. (a)(1)),
and had served a prior prison term (§ 667.5, former subd. (b)).
On August 26, 2019, defendant filed a motion to set aside all counts of the
information (§ 995). On September 9, 2019, the trial court granted defendant’s motion as
to counts 2 and 3, but denied the motion as to count 1.
On October 25, 2019, the trial court held a change of plea hearing. Before
changing his plea, defendant inquired regarding his prison custody credit earning
capacity. The trial court told defendant that his custody credits were determined by the
1 All further statutory references are to the Penal Code.
2.
State Department of Corrections and Rehabilitation (CDCR). Then, pursuant to a
negotiated plea agreement, defendant pled guilty to count 1 and admitted the prior strike
conviction allegation. The plea agreement required imposition of a six-year term of
imprisonment and dismissal of the prior serious felony conviction and prior prison term
allegations on the People’s motion.
On November 25, 2019, defendant’s trial counsel advised the court that his client
sought to withdraw his plea. The matter was set over to afford defendant’s counsel an
opportunity to discuss the matter with defendant.
On January 6, 2020, defendant moved, and the trial court granted defendant’s
Marsden2 motion for substitute counsel for purposes of filing a motion to withdraw from
the plea agreement on the basis that his trial counsel misadvised him regarding credit
earning capacity.
On April 8, 2020, defendant’s substitute counsel told the court that, after his
review of the record and interview of defendant’s former counsel, there was no basis to
file a motion to withdraw the plea. The trial court set the matter over for defendant’s
substitute counsel to obtain a declaration from defendant’s former counsel regarding what
was discussed regarding defendant’s prison custody credit earning capacity.
On June 5, 2020, after having obtained and reviewed the record and defendant’s
former counsel’s declaration, defendant’s substitute counsel declined to file a motion to
withdraw from the plea on defendant’s behalf. The trial court then conducted another
Marsden hearing at which it determined that new substitute counsel would not be
appointed because defendant knowingly and voluntarily entered his guilty plea and there
was no basis to withdraw the plea.
On the same date, the trial court sentenced defendant to six years (the upper term
of three years doubled due to the prior strike conviction) in prison on count 1 pursuant to
2 People v. Marsden (1970) 2 Cal.3d 118.
3.
the plea agreement. The trial court did not state its reasons for imposition of the
upper term.
On June 17, 2020, defendant filed a notice of appeal.
FACTUAL SUMMARY
The trial court recited, and defendant admitted, the following factual basis:
“[On May 6, 2019,] … you did threaten to commit a crime which
could result in death, or great bodily injury to a person whose initials [are]
RS and when that happened you intended the statement you made to be
taken as a threat and the threat was unequivocal, unconditional and that the
person was in sustained fear of their safety and the safety of their family.”
Beyond that admitted factual basis, at the preliminary hearing, the following was
presented:
Ronald Stover worked as a Kings County Public Defender. In May 2019, he had
known defendant for about three years and had represented him “on a number of different
occasions.” On May 6, 2019, Stover met with defendant outside of his assigned
courtroom immediately before the morning or afternoon calendar. Defendant demanded
that Stover provide him with some videos from closed and dismissed cases that Stover
had previously provided to him on a CD. Defendant said the CD was not working.
Stover offered to share the video file with defendant digitally and requested his email
address. Defendant “became very aggressive” and approached Stover, demanding that
Stover go to his office immediately and give defendant what he wanted. Stover described
that defendant was loud, cursed at him, clenched his fists, pushed his chest out at Stover
while moving toward him, and refused Stover’s multiple requests that he step back.
Stover was concerned for his safety because he had seen defendant “become extremely
violent and aggressive with others.”
After pursuing Stover around the perimeter of the “support wall” outside the
courtroom, defendant backed Stover against a glass window. He continued to refuse
Stover’s requests to back away. He told Stover that he was going to “take [him] outside
4.
and get what he wanted.” Stover thought defendant might strike him or push him toward
the glass window. At around that time, the bailiff for Stover’s assigned courtroom
opened the door to the courtroom and observed defendant’s conduct toward Stover. He
asked defendant to step back, and defendant again refused to do so. Soon after, five or
six deputies approached defendant and moved him about 10 feet from Stover. Less than
a minute later, defendant rushed toward Stover and was stopped by the deputies and
handcuffed. He was then removed from the hallway outside the courtroom and
transported to jail.
DISCUSSION
I. Due Process and Ineffective Assistance of Counsel: Advisement Regarding
Custody Credits
Defendant argues that the trial court violated his due process rights by misadvising
him regarding his eligibility for custody credits and his trial counsel was ineffective for
failing to advise him that he was ineligible under the plea agreement to earn custody
credits amounting to 50 percent of his sentence. As the parties agree, based on admission
of a prior strike conviction, defendant could not earn credits in excess of 20 percent of his
total sentence. (§ 667, subd. (c)(5).) The People nevertheless argue that defendant’s due
process and ineffective assistance of counsel claims fail because he suffered no prejudice.
We agree with the People.
A. Additional Background
On October 25, 2019, the parties advised the court that they had reached a
resolution. They submitted a signed plea agreement wherein defendant pled guilty to
count 1—which was described as an offense carrying an exposure of 16 months,
two years, or three years—and admitted a prior strike conviction for a total term of
imprisonment of six years. Prior to the trial court taking defendant’s plea, the trial court
advised defendant that by the terms of the agreement he would be sentenced to six years
5.
in state prison and asked if that was defendant’s understanding. The following discussion
then occurred:
“[] DEFENDANT: Yes. But I’m trying to get an understanding of
the time. The time. He tells⸻
“THE COURT: Six years.
“[DEFENDANT’S COUNSEL]: I explained to my client it is
six years. I think what my client is asking, Judge, he wants to inquire as to
how much actual time he’s going to spend and I told him that’s not up to
the Court.
“THE COURT: What you’re really asking is what the credits are
going to be. Going to do 50 percent or 80, that’s the question, right?
“[] DEFENDANT: Yes, basically.
“THE COURT: I can’t answer that for you. It’s not up to me. I
don’t make that determination. The reason is many fold. Most important
reason is it really depends upon your conduct after you get to prison.
Because that⸻your credits can change. They can take credits away
depending on your behavior, et cetera, et cetera. When you get there you
will go to one location first and be there a few months and they will set you
up, give you your release date and times. And I don’t mean this in
offensive way but you’ve been in prison before, right?
“[] DEFENDANT: Yes.
“THE COURT: You know how it works, right?
“[] DEFENDANT: Yeah.
“THE COURT: They will give you an outdate.
“[] DEFENDANT: What I’m saying is you don’t basically have to
stipulate it’s six years with half? It’s prison that stipulates that?
“THE COURT: I don’t determine it’s six years at half. I determine
it’s six years based on the agreement been reached [sic]. Okay. How much
of that you actually do is up to the department of corrections, not me.”
At the January 6, 2020, Marsden hearing, defendant repeatedly stated that his trial
counsel led him to believe that, under the plea agreement, he “was taking a deal for
6.
six with half”—meaning a six year term of imprisonment with 50 percent credit earning
capacity. Defendant’s trial counsel did not respond directly to defendant’s assertion.
Instead, he relayed that defendant asked him “to clarify exactly how much time
[defendant would serve], and [inquired whether] the judge knows [the answer].
[Defendant’s counsel] said no,3 but [told defendant that he] could ask [the judge].”
Likewise, in defendant’s trial counsel’s later declaration, he relayed only the events that
occurred at the change of plea hearing and did not directly address whether he had
advised defendant regarding any limits on custody credits.
B. Due Process
A defendant must be advised of direct consequences of a plea in order for the plea
to be knowingly and voluntarily entered. (People v. Barella (1999) 20 Cal.4th 261, 266
(Barella).) Limitations on a defendant’s credit earning capacity in prison due to a prior
strike conviction is a collateral consequence, not a direct consequence, of a guilty plea of
which a trial court need not advise a defendant in order for a defendant’s guilty plea to be
knowing and voluntary. (Id. at pp. 270–271.) However, the trial court also has an
obligation not to misadvise a defendant regarding the consequences of a plea agreement,
including credit earning capacity. (People v. Goodwillie (2007) 147 Cal.App.4th 695,
733–735 (Goodwillie) [“[T]he court and the prosecutor, as officers of the court, have a
duty not to misstate the law, whether intentionally or not.”].)
When a trial court misadvises a defendant, prejudice must still be demonstrated—
that he would not have accepted the plea agreement if he had been correctly advised.
(People v. Miralrio (2008) 167 Cal.App.4th 448, 462–463; see In re Moser (1993) 6
3 It is not clear to us from the context whether defendant’s trial counsel meant that
he did not know how much time defendant would serve or that the trial judge would not
know.
7.
Cal.4th 342, 352.)4 Where a defendant accepts a plea agreement based on
misinformation, prejudice is demonstrated if defendant would not have accepted the plea
agreement if he had not been misadvised. Relevant to that inquiry are (1) whether the
misinformation provided by the court made the plea bargain more attractive than it would
have been if defendant was not misadvised (Goodwillie, supra, 147 Cal.App.4th at
p. 734) and (2) the likely outcome if defendant had gone to trial (see Hill v. Lockhart
(1985) 474 U.S. 52, 59–60 (Hill) [in determining prejudice in the ineffective assistance of
counsel context, courts should consider whether a defendant was likely to have been
convicted of the charged offenses, and if so, whether he would have received a shorter
sentence than he received pursuant to the plea agreement]). “[P]redictions of the
outcome at a possible trial [and whether a defendant would have gone to trial] … should
be made objectively, without regard for the ‘idiosyncrasies of the particular
decisionmaker.’ ” (Hill, supra, 474 U.S. at pp. 59–60, citing Evans v. Meyer (1984) 742
F.2d 371, 375 [“It is inconceivable to us … that [the defendant] would have gone to trial
on a defense of intoxication, or that if he had done so he either would have been acquitted
or, if convicted, would nevertheless have been given a shorter sentence than he actually
received.”].)
4 The Miralrio court disagreed with the Goodwillie court on the issue of prejudice.
Where Goodwillie appeared to place the “burden … on the People to prove the error
harmless beyond a reasonable doubt” Miralrio concluded that the burden should
appropriately be placed on the defendant, as is the case for ineffective assistance of
counsel, for three reasons: (1) because “ ‘[a]nyone who seeks on appeal to predicate a
reversal of conviction on error must show that it was prejudicial’ ” (Miralrio, supra, 167
Cal.App.4th at p. 642); (2) “it makes sense to require the defendant to show prejudice,
because the defendant is the only one who knows whether he would have accepted the
plea bargain absent the misadvisement” (Id. at p. 643); and (3) because “[i]t would be
anomalous to place the burden on the defendant in ineffective-counsel cases but on the
People in other cases of misadvisement” (Ibid.). We agree with the Miralrio court for the
reasons it articulated.
8.
In Goodwillie, the prosecutor and trial court misadvised the pro se defendant that
he would serve at least 85 percent of the sentence and was not eligible to serve 50 percent
of the sentence due to his prior strike conviction. (Goodwillie, supra, 147 Cal.App.4th at
p. 731.) Based on the misinformation, the defendant refused the plea agreement and went
to trial. (Id. at p. 732.) After his conviction, the trial court informed him that he was
eligible to earn custody credits up to 50 percent of his total sentence. (Ibid.) On appeal,
the court determined that the trial court violated defendant’s due process rights; “[b]y
misinforming Goodwillie as to the consequences of the proffered plea bargain, the court
… caused him to reject an offer that was more favorable to him than the result after trial,
and one that he had indicated a willingness to accept.” (Id. at p. 735.)
The People attempt to distinguish from Goodwillie by arguing that, in the present
case, the trial court did not misadvise defendant. Instead, they argue, “[a]t most, [the trial
court] failed to tell appellant that he was limited to earning 20 percent credits while
serving his sentence.” We disagree with the People’s characterization. (Cf. Barella,
supra, 20 Cal.4th at p. 264 [no constitutional violation where the trial court made no
mention of credit earning limits].) The trial court did not merely fail or refuse to answer
defendant’s question. It informed defendant that it “could not” answer the question and
did not “make that determination,” suggesting that only the CDRC could answer the
question. The court’s statement was not a refusal or failure to inform—for instance, I do
not know your credit earning eligibility—it was incorrect information—no one but the
CDRC could know. Defendant accepted the plea agreement after the trial court advised
him, in essence, that whether he was eligible to earn 50 percent credit or 20 percent credit
was unknowable. In fact, based on the plea agreement, defendant was ineligible to earn
more than 20 percent credit based on his admission of a prior strike conviction.
Next, we must consider whether defendant was prejudiced by the misinformation.
Before pleading guilty, defendant asked how much time he would serve under the plea
agreement and agreed with the court’s framing of the question: “What you’re really
9.
asking is what the credits are going to be. Going to do 50 percent or 80, that’s the
question, right?” At the next hearing, after defendant had learned that he was
misadvised, he immediately sought to withdraw from the plea agreement. When
defendant was given an opportunity to explain why he sought to withdraw from the plea
agreement, he repeatedly explained that he thought he was eligible to earn custody credits
for up to 50 percent of the total sentence. Before and after the plea, defendant expressed
disinterest in a plea agreement that required him to serve at least 80 percent of his
sentence. Defendant’s goal, as he explained on June 5, 2020, was to “get [the least] time
as possible ….”
However, defendant’s dissatisfaction with the plea agreement, by itself, is not
sufficient to demonstrate prejudice if there was no possibility that defendant could have
achieved a better outcome had he not accepted the plea. Here, defendant could not have
obtained a more favorable outcome if he had not pled guilty. Defendant faced a
maximum term of 11 years imprisonment.5 Pursuant to the plea agreement, the five-year
prior serious felony enhancement (§ 667, subd. (a)) was dismissed.
Defendant’s alternative—going to trial—would not have resulted in a better
outcome. Defendant explained that he believed he had a viable defense because his
conduct did not rise to the level of felony criminal threats. Specifically, “he ‘did not
threaten anybody’ with death or great bodily harm as required under section 422.” The
record before us does not support defendant’s contention. Based on the testimony from
the preliminary hearing, defendant pursued Stover with clenched fists, got very close to
him, refused Stover’s requests that he move away, verbally told Stover that he was going
5 Defendant also faced imposition of three prior prison term enhancements pursuant
to section 667.5, former subdivision (b). Because those prior prison terms were not
served for sexually violent offenses, those enhancements are no longer applicable, and we
do not consider them in calculating defendant’s potential maximum term of
imprisonment.
10.
to “take [him] outside and get what he wanted,” and attempted to rush at Stover even
after deputies moved defendant away from Stover. Stover knew defendant to be violent
based on prior interactions. Those circumstances are sufficient to support a conviction
for felony criminal threats. (E.g. People v. Martinez (1997) 53 Cal.App.4th 1212, 1218,
1220 [the defendant’s statements to victim, including “ ‘I’m going to get you,’ ” and
“ ‘I’ll get you,’ ” were sufficient to convey a felony criminal threat where the defendant
also approached the victim “quickly, … yelled and cursed at him, … got within very
close proximity to his face, and … displayed very angry behavior”].) Nothing in the
record suggests any other factual scenario. Moreover, the record gives no indication that
defendant would have been able to successfully challenge the existence of his prior strike
conviction.
Despite defendant’s apparent unwillingness to accept a plea agreement that
required him to serve at least 80 percent of the sentence, defendant had no more favorable
alternative available. He accepted a plea agreement that allowed him to serve roughly
half of what he could have been sentenced to if he had been convicted at trial. On the
record before us, it is not clear that a rational defendant would have rejected the plea
agreement had he not been misinformed that only the CDRC could determine limits on
capacity to earn custody credits. For that reason, we conclude that defendant suffered no
prejudice.
C. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel defendant must show (1) counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was prejudicial. (Strickland
v. Washington (1984) 466 U.S. 668, 687–688 (Strickland); People v. Ledesma (1987) 43
Cal.3d 171, 216–217.) “ ‘Unless a defendant establishes the contrary, we shall presume
that “counsel’s performance fell within the wide range of professional competence and
that counsel’s actions and inactions can be explained as a matter of sound trial strategy.”
11.
[Citation.] If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” ’ ” (People v. Lopez (2008) 42
Cal.4th 960, 966.) To establish prejudice, defendant must make a showing “sufficient to
undermine confidence in the outcome” that but for counsel’s errors there is a reasonable
probability that the result of the proceeding would have been different. (Strickland, at
p. 694; Ledesma, at pp. 217–218.) Specific to the context of an accepted plea agreement,
to establish prejudice “the defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” (Hill, supra, 474 U.S. at p. 59.)
While a defense lawyer is required to advise a defendant of the direct
consequences of his or her plea, “a defense lawyer’s ‘ “failure to advise the defendant of
the collateral consequences of a guilty plea cannot rise to the level of constitutionally
ineffective assistance.” ’ ” (People v. Reed (1998) 62 Cal.App.4th 593, 597.) “[T]here
exists no federal requirement, constitutional or otherwise, that a defendant be admonished
by the trial court about parole eligibility factors as a condition of a valid guilty plea.”
(Id. at p. 598.) Nevertheless, as the parties agree, defense counsel has an obligation not
to affirmatively misadvise his or her client regarding the collateral consequences of a
guilty plea, including any limit on credit earning capacity. (See People v. Kim (2009) 45
Cal.4th 1078, 1104 [“an attorney has a constitutional duty at least not to affirmatively
misadvise his or her client as to the immigration consequences of a plea”].)
For a defendant to prevail on appeal on an ineffective assistance of counsel claim
alleging he was misadvised by trial counsel as to a collateral consequence of the plea,
“the record on appeal [must] definitively establish whether or not counsel so advised
defendant (beyond defendant’s bare assertion …)” and whether defendant would “not
have entered into the apparently favorable plea agreement” had he not been misadvised.
12.
(Barella, supra, 20 Cal.4th at p. 272.) If those facts are not established by the record, a
“defendant’s claim of ineffective assistance of counsel should be resolved in a habeas
corpus proceeding rather than on appeal.” (Ibid.)
In Barella, the defendant entered a plea agreement by which he pled guilty to an
offense and admitted a prior strike conviction in exchange for dismissal of a charged
offense. (Barella, supra, 20 Cal.4th at p. 263.) Before sentencing, the defendant moved
to withdraw his plea, contending that he had been unaware that he would not earn more
than 20 percent custody credit due to his prior strike. (Id. at p. 264.) He declared that he
was not advised that he would “have to serve 80 percent of any sentence imposed. It was
[his] understanding [that he] would receive 50 percent credit for good time and work
time ….” (Ibid.) He further alleged that if he had known about the limit on credit
earning capacity, he would not have entered his plea. (Ibid.) The Supreme Court
concluded that the record did not definitively establish the facts necessary to support an
ineffective assistance of counsel claim on appeal. (Id. at p. 271.)
Here, the record does not definitively establish that defendant’s trial counsel
erroneously advised him that he could earn 50 percent custody credit. As was the case in
Barella, the only evidence in the record suggesting that trial counsel was ineffective is
defendant’s bare assertion that he was misadvised. (Barella, supra, 20 Cal.4th at p. 270.)
Counsel’s failure to advise defendant of credit earning limitations due to a prior strike
conviction—as opposed to affirmative misrepresentation of the consequences—is not
sufficient to state a claim for ineffective assistance of counsel. (People v. Kim, supra, 45
Cal.4th at p. 1104.) The record does not clearly demonstrate that defendant’s trial
counsel’s performance was deficient.
Moreover, prior to taking his plea, the trial court told defendant that it could not
determine his credit earning capacity in prison; it told defendant that the CDRC made the
decision. While the trial court was partially mistaken—it could certainly have told
defendant that because of his strike conviction he would have to serve at least 80 percent
13.
of his sentence—that defendant nevertheless entered a guilty plea under the belief that
only the CDRC could calculate his credit earning capacity belies his contention that he
only pled guilty because he was advised that he would only serve 50 percent of the
statutory sentence. His argument that he suffered prejudice—because he would not have
pled guilty if he had not been misadvised by his counsel that he could earn 50 percent
credit—is therefore unsupported by the record. Defendant pled guilty after the trial court
explicitly told him that the plea agreement did not determine any limitations on his credit
earning capacity.
Further, as discussed in the previous section, there is no reasonable likelihood that
defendant could have obtained a better outcome if he had gone to trial. (Hill, supra, 474
U.S. at pp. 59–60.) The record before us does not demonstrate that defendant suffered
any prejudice.
II. Ineffective Assistance of Counsel: Withdrawal of Guilty Plea
Defendant next argues that trial counsel and substitute counsel were ineffective for
failing to file a motion to withdraw his guilty plea. The People again disagree, as do we.
“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. … If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be
followed.” (Strickland, supra, 466 U.S. at p. 697.)
As we described above, defendant could not have achieved a better outcome in
this case even if he had been permitted to withdraw his guilty plea. His ineffective
assistance of counsel claim fails for lack of prejudice.
III. Senate Bill 567
Finally, defendant contends that we must vacate the sentence and remand the
matter because defendant did not admit, and the trial court did not find, that
circumstances in aggravation of the offense justified a sentence exceeding the
14.
middle term. The People respond that the modifications to section 1170 brought about by
Senate Bill 567 are inapplicable in this case because the trial court had no discretion to
impose a sentence other than the sentence set out in the negotiated plea agreement. The
People are mistaken.
Effective January 1, 2022, Senate Bill 567 amended section 1170,
subdivision (b)(2), such that it now provides, “[t]he 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 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).)6 On the other hand, section 1192.5, subdivision (b),
provides in relevant part, that when a “plea is accepted by the prosecuting attorney in
open court and is approved by the court, … the court may not proceed as to the plea other
than as specified in the plea.”
A. Retroactivity
As a threshold matter, Senate Bill 567 is retroactive to cases not yet final on
appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People v. Flores (2022) 73
Cal.App.5th 1032, 1038–1039 [remanding for resentencing under another ameliorative
amendment to section 1170 by Senate Bill 567]) and defendant’s sentence is not yet final
on appeal.
B. Section 1170, subdivision (b)(1), (2), and Section 1192.5
The People contend that section 1170, subdivision (b)(2), applies only when the
trial court’s discretion is not restrained by a negotiated plea agreement pursuant to
section 1192.5. They reason that when a plea agreement stipulates that the upper term be
6 A trial court is permitted to rely upon a certified record of conviction to determine
prior criminality for purposes of sentencing without submitting the prior conviction to a
jury. (§ 1170, subd. (b)(3).)
15.
imposed, the trial court exercises no discretion and may not make the finding required by
section 1170, subdivision (b)(2). For that proposition, the People rely on People v.
Brooks (2020) 58 Cal.App.5th 1099 (Brooks). In Brooks, the defendant entered a plea
agreement that stipulated a 13-year sentence. (Id. at p. 1102.) Brooks petitioned the
lower court to be resentenced, pursuant to recently enacted section 1170.91,
subdivisions (a) and (b)(1), which, collectively, required the trial court to consider
specific mental health problems as circumstances in mitigation when sentencing military
veterans and permitted military veterans with such problems to petition for a recall of
sentence. (Brooks, at pp. 1102–1103; § 1170.91, subds. (a) & (b)(1); see § 1170.91
[“court shall consider the [identified] circumstance as a factor in mitigation when
imposing a term under subdivision (b) of Section 1170”].) The trial court concluded that
it had no power to resentence defendant because his plea agreement provided for a
stipulated term. (Brooks, at p. 1103.) The trial court affirmed, concluding that
section 1170.91 does not “extend[] to sentences based on final convictions by plea
agreement specifying a stipulated imprisonment term.” (Ibid. at p. 1106.) The court
explained that there was no “triad sentencing discretion to exercise” because the plea
agreement specified the sentence to be imposed and, pursuant to section 1192.5, no other
sentence could properly be imposed. (Brooks, at p. 1107.)
The Brooks court distinguished the case from People v. Stamps (2020) 9 Cal.5th
685 (Stamps), where the court was required to apply a retroactive ameliorative change in
the law that provided new discretion to dismiss an enhancement (see § 1385). (Brooks,
supra, 58 Cal.App.5th at p. 1107.) In Brooks, however, section 1170.91 did not “grant
the trial court unfettered discretion to reconsider an aspect of his sentence that would in
turn affect his plea bargain. All it [did was] allow a court to take certain mitigating
factors into account and only insofar as the court is otherwise permitted to exercise
discretion in the selection of a low, middle, or high term from within the applicable
sentencing triad.” (Brooks, at p. 1107.)
16.
Brooks is not controlling here. Section 1170.91 does not parallel section 1170,
subdivision (b)(1) and (2). The amendment to section 1170, subdivision (b)(2), does not
merely require the trial court to consider additional factors in reaching a trifecta
determination; it precludes the trial court from imposing the upper term unless it finds
“there are circumstances in aggravation of the crime that justify the imposition of” the
upper term. Indeed, section 1170, subdivision (b)(1), requires such a finding any time
“the statute specifies three possible terms.” In other words, section 1170,
subdivision (b)(1) and (2) mandates a new finding; it does not simply add an additional
consideration to an already existing determination. Section 1170, subdivision (b)(1) and
(2) require trial courts to determine whether the circumstances in aggravation of the
crime justify the imposition of a term of imprisonment exceeding the middle term. While
the parties may stipulate to the existence of facts that support such a determination, they
cannot, by negotiated plea agreement, obviate the need for the trial court to make the
required determination.
C. Remedy
Because defendant’s case is not yet final on appeal and the trial court did not make
the determination required under section 1170, subdivision (b)(1), we must determine the
appropriate remedy. For the following reasons, we conclude that we must remand the
matter to permit the trial court to make the required determination. If the trial court does
not conclude that there are 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. We are cognizant that under the terms of the plea agreement, no term other
than the upper term may be imposed. The only remedy left in that situation is for the trial
court to withdraw approval for the plea agreement and return the parties to the status quo
ante.
In People v. Flores (2022) 77 Cal.App.5th 420 (Flores), this court discussed the
appropriate remedy when an ameliorative change in law undermines a plea agreement by
17.
requiring imposition of a sentence other than the sentence required by a negotiated plea
agreement. Specifically, Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly
Bill 1950), as applicable to Flores, required that misdemeanor terms of probation not
exceed one year but the negotiated plea agreement required that defendant be granted a
three-year term of misdemeanor probation. (Flores, at pp. 1−2.) Assembly Bill 1950
was undisputedly retroactive pursuant to Estrada. However, we explained that “[a]s
stated in Stamps, [ supra, 9 Cal.5th 685], ‘[t]he 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.’ ” (Flores, at p. 7.) How the statute
should be applied is a question of legislative intent. (Ibid.)
In Flores, we outlined basic principles of plea bargaining and our Supreme
Court’s decisions in People v. Collins (1978) 21 Cal.3d 208 (Collins), Harris v. Superior
Court (2016) 1 Cal.5th 984 (Harris), and Stamps, supra, 9 Cal.5th 685. We distilled the
following principles relevant to this matter. First, a defendant sentenced pursuant to a
negotiated plea agreement is not excluded from the benefits of ameliorative changes in
the law (Flores, supra, 77 Cal.App.5th at pp. 14−15, citing Harris, supra, at p. 991);
however, in applying an ameliorative change in the law, “ ‘the court is not authorized to
unilaterally modify the plea agreement by striking [portions of the sentence] but
otherwise keeping the remainder of the bargain[,]’ ” absent legislative intent to the
contrary (Flores, at p. 23, quoting Stamps, at p. 707). Second, when external events, such
as an ameliorative change in the law undermine a plea agreement, the court “ ‘must
fashion a remedy that restores to the state the benefits for which it bargained without
depriving [the] defendant of the bargain to which he remains entitled.’ ” (Flores, at
p. 12, quoting Collins, at p. 216.) Third, in fashioning a remedy where the plea is
undermined by an ameliorative change in law (as opposed to an ameliorative change in
the law merely granting the trial court additional discretion), the defendant may not be
18.
subjected “to more severe punishment than under the plea agreement.” (Flores, at pp. 14,
38−39, citing Harris, at pp. 989–990.)
As we highlighted in Flores, the appropriate remedy when an ameliorative change
of law impacts a stipulated sentence imposed pursuant to a negotiated plea agreement can
take many different forms as demanded by the text and intent of the legislation at issue
and the need to maintain the reciprocal benefits imparted by the plea agreements. In
Collins, the defendant pled guilty to an offense in exchange for dismissal of 14 other
counts. (Collins, supra, 21 Cal.3d at p. 211.) The defendant’s crime of conviction was
decriminalized but the defendant was nevertheless sentenced pursuant to the plea
agreement. (Id. at pp. 211–212.) Our Supreme Court concluded that the proper remedy
was permitting revival of one or more of the 14 counts dismissed pursuant to the plea
agreement “but limiting [the] defendant’s potential sentence …[,]” not to exceed the
sentence originally imposed. (Collins, supra, 21 Cal.3d at p. 216; Flores, supra, 77
Cal.App.5th at p. 12.)
In Harris, the ameliorative change in law (Proposition 47) modified the offense to
which defendant pled guilty pursuant to a plea agreement from a felony to a misdemeanor
but left unaffected the felony charges dismissed pursuant to the plea agreement. (Harris,
supra, 1 Cal.5th at p. 988; Flores, supra, 77 Cal.App.5th at p. 13.) The legislation
explicitly applied to plea agreements, was intended to reduce the number of nonviolent
offenders in state prison, and provided a specific “ ‘safety valve’ ”—permitting courts to
decline relief if it “ ‘would pose an unreasonable risk of danger to public safety.’ ”
(Harris, at pp. 991–992; Flores, at p. 15.) The Harris court therefore found that the
intent of the electorate was to allow modification of plea agreements without affording
the People an opportunity to withdraw from the plea agreement; to do otherwise would
frustrate the intent of the electorate. (Harris, at p. 992; Flores, at pp. 16−17.)
In Stamps, the defendant was sentenced pursuant to a negotiated plea agreement to
a stipulated nine-year term, five years of which were imposed for a then-mandatory
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enhancement. (Stamps, supra, 9 Cal.5th at p. 692; Flores, supra, 77 Cal.App.5th at
pp. 17−18.) While the matter was pending on appeal, the ameliorative change in law
(Senate Bill No. 1393 (2017–2018 Reg. Sess.)) granted the court discretion to strike the
five-year enhancement. (Stamps, at p. 692; Flores, at pp. 17−18.) “Stamps concluded
that ‘[n]othing in the language and legislative history of [the ameliorative change in law]
suggests an intent to modify section 1192.5’s mandate that “the court may not proceed as
to the plea other than as specified in the plea” without the consent of the parties. … [T]o
allow the [trial] court to strike the … enhancement [affected by the change in law] but
otherwise retain the plea bargain[] would frustrate the Legislature’s intent ….’ ” (Flores,
at p. 22, quoting Stamps, at p. 704.) Nevertheless, because the trial court lacked the
discretion to strike the five-year enhancement at the time of sentencing, the Stamps court
concluded that the defendant must be permitted an opportunity to seek the trial court’s
exercise of its newly granted discretion. (Stamps, at p. 707.) Although the trial court
could not unilaterally modify the plea agreement, if it was inclined to exercise its newly
granted discretion, it could withdraw approval for the plea agreement and restore the
parties to the status quo ante. (Ibid.)
Finally, in Flores, we examined the text, legislative intent, and context of
Assembly Bill 1950. Assembly Bill 1950 was not expressly retroactive to final
judgments like the ameliorative change in law at issue in Harris. (Flores, supra, 77
Cal.App.5th at pp. 29−30.) But, given the Estrada presumption and the absence of
legislative intent to the contrary, it was retroactive to cases not yet final on appeal.7 (Id.
at p. 30.)
7 The legislative intent behind Assembly Bill 1950 “reflects, at bottom, concern
‘that lengthy probationary periods do not serve a rehabilitative function and unfairly lead
to reincarceration for technical violations.’ ” (Flores, supra, 77 Cal.App.5th at p. 32.)
The legislation was underpinned by research showing “ ‘that probation services, such as
mental health care and addiction treatment, are most effective during the first 18 months
of supervision,’ ” and “ ‘that providing increased supervision and services earlier reduces
20.
We explained that the remedy in Stamps was not applicable to Assembly Bill 1950
cases because the Stamps court “addressed an additional concern not” at issue in Flores.
(Flores, supra, 77 Cal.App.5th at p. 36.) The ameliorative change in law in Stamps “did
not directly modify a term of the parties’ plea bargain, unlike Assembly Bill 1950[,]” at
issue in Flores. (Flores, at p. 36.) “Rather, it merely afforded the defendant the
opportunity to ask the trial court to exercise” its newly granted discretion to strike the
five-year enhancement. (Ibid.) “The defendant in Stamps sought more than the relief to
which he was entitled …; should he succeed in persuading the court to strike the
[five-year] enhancement …, he also wanted to maintain the rest of his plea bargain. The
effect of this is a request that the trial court modify a term of the plea bargain,
unilaterally.” (Flores, at pp. 36−37.) Assembly Bill 1950 was meaningfully different.
“Reduction in the maximum probation term under Assembly Bill 1950 … was effected
by the Legislature directly and does not rely upon the trial court’s exercise of its
sentencing discretion.” (Flores, at p. 39.) Assembly Bill 1950 prohibited the sentence
that was imposed. For that reason, we concluded that the remedy set out in Stamps—
restoring the parties to the status quo ante with no apparent limitations on the
maximum—was not appropriate for modifications required under Assembly Bill 1950.
In Flores, the relief sought by the defendant was not beyond that which Assembly Bill
1950 afforded—reduction of the term of misdemeanor probation to one year. Because
we concluded that the law directly affected a term of the plea agreement and undermined
the bargain entirely (the defendant did not “repudiate [his] plea bargain”), depriving
an individual’s likelihood to recidivate.’ ” (Id. at pp. 32−33.) In Flores, we further noted
that the majority of criminal cases—probably “ ‘between 80 and 90 percent of criminal
cases are disposed of by guilty pleas …, which, in the majority of cases, are the product
of plea bargains.’ ” (Id. at p. 34.) In light of the legislative intent and the fact that most
criminal cases are disposed of by plea bargains, we concluded that Assembly Bill 1950
was retroactive to all cases not yet final on appeal. (Ibid.)
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defendant of the benefit of his plea agreement and depriving him of the benefit of
Assembly Bill 1950 by restoring the parties to the status quo ante would run afoul of
Harris and Collins. (Flores, at pp. 40−41.) Assembly Bill 1950 prohibited the sentence
imposed—a term of probation exceeding one year. Placing the defendant in a position
where he could face prison based only on his receipt of the direct benefit of an
ameliorative change in the law designed to lessen terms of probation would have flown in
the face of the legislative intent. We therefore reduced the defendant’s term of probation
to one year without permitting the trial court or People an opportunity to withdraw
approval for the plea agreement.
As discussed above, Senate Bill 567 does not merely grant trial courts new
discretion or add additional considerations to the exercise of discretion. Senate Bill 567
limits a trial court’s authority and requires it to make a new determination—whether,
based on facts proved to a jury (or a court in a bench trial) or admitted by defendant, the
“circumstances in aggravation of the crime … justify the imposition of a term of
imprisonment exceeding the middle term ….”8 (§ 1170, subd. (b)(2).) That limitation on
discretion was a purposeful response by the author of Senate Bill 567 to the previous
broad discretion afforded to trial courts in selecting between the lower, middle, and upper
8 Section 1170, subdivision (b)(1) now provides 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, except” as provided in subdivision (b)(2). (Italics added.) Previously, the trial
court had broad discretion to impose the lower, middle, or upper term in the interest of
justice. (§ 1170, former subd. (b); California Rules of Court, rule 4.420(e).) Senate
Bill 567 permits the trial court discretion to impose a sentence exceeding the middle term
only if it makes the required finding; it did not grant discretion—it limited discretion.
Without the required finding, the trial court has discretion to impose only the lower or
middle term. (See Sen. Com. on Public Safety, Analysis of Sen. Bill 567 (2021−2022
Reg. Sess.) as amended Mar. 9, 2021, p. 4 [“When aggravating factors are not present or
not proven, the bill authorizes the court to sentence the defendant to a term not to exceed
the middle term meaning that the judge has the discretion to sentence the defendant to a
range in between the lower and middle term.”].)
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terms that has “led to individuals serving maximum prison sentences without the
opportunity to effectively refute alleged aggravating facts.” (Assem. Com. on Public
Safety, Rep. on Sen. Bill 567 (2021−2022 Reg. Sess.) as amended May 20, 2021, p. 3.)
Senate Bill 567 reflected the Legislature’s intent to ensure that “the harshest sentences
receive the greatest scrutiny and justification before they are meted out.” (Ibid.)
Where, as here, no finding was made that the circumstances in aggravation justify
imposition of the upper term, the upper term may not be imposed. The matter must be
remanded for the trial court to make the required finding.9 We take no position on the
appropriate finding.
If the trial court does not conclude that the admitted facts support the finding that
circumstances in aggravation justify imposition of the upper term, the trial court may not
impose the upper term, which wholly undermines the plea agreement. As was the case in
Flores and Collins (and unlike Stamps), the undermining of the plea agreement is the
direct consequence of the ameliorative change in law; defendant did not repudiate the
plea agreement. Unlike Flores, the only remedy available under the law is not to reduce
the sentence without allowing withdrawal from the plea agreement. As noted in Flores
and Collins, such is a “ ‘bounty in excess of that to which [defendant] is entitled.’ ”
(Flores, supra, 77 Cal.App.5th at p. 41; Collins, supra, 21 Cal.3d at p. 215.) Collins is
9 We are mindful that no facts were proved to a jury and the admitted factual basis
for the plea was little more than a recitation of elements of the offense. Defendant could
admit a more detailed factual basis, or he could waive his right to a jury trial on the
aggravated circumstances finding; or the People could prove facts that they believe
support an aggravated circumstances finding to a jury or submit certified records of
defendant’s prior convictions (see § 1170, subd. (b)(3). If a factual basis for the finding
is proved, and the trial court concludes that the circumstances in aggravation justify
imposition of the upper term, the plea agreement will not be undermined and the upper
term may be imposed, consistent with the plea agreement. However, we offer guidance
to the trial court in the event that no finding is made that the circumstances in aggravation
support imposition of the upper term.
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instructive regarding an appropriate remedy:10 restore the lost benefit of the bargain to
the state by placing the parties in the pre-plea status quo, but preserve the benefit of the
bargain to defendant by precluding a total sentence exceeding the sentence stipulated in
the plea agreement. (Collins, at p. 216.) Such an outcome is consistent with the
legislative intent of Senate Bill 567: 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 567 (2021−2022 Reg. Sess.) as amended June 28, 2021, p. 3.)
DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded for factfinding and
resentencing pursuant to section 1170, subdivision (b). In all other respects, the judgment
is affirmed.
10 Collins involved reviving only the 14 dismissed counts because the offense of
conviction was decriminalized. (Collins, supra, 21 Cal.3d at p. 211.) Such is not the
case here. Setting aside the plea agreement permits the People to prosecute the criminal
threats charge as well as the dismissed charges.
24.