The changes made by Senate Bill No. 567 to Penal Code section 1170(b) apply retroactively to convictions reached by plea agreements providing for a stipulated sentence. As part of a negotiated plea agreement, defendant pleaded no contest to charges of assault with a deadly weapon and hit-and-run driving resulting in permanent, serious injury after he purposely hit a person with his car. The trial court sentenced him to an aggregate stipulated sentence of eight years in prison, which included a four-year upper term for his conviction for assault with a deadly weapon. On appeal, defendant argued the postsentencing enactment of SB 567, which altered the requirements for imposition of an upper term under section 1170(b), necessitated a remand for resentencing. Held: Reversed and remanded. Courts of Appeal are split on whether a defendant who received an upper term pursuant to a plea agreement that included a stipulated sentence is entitled to a remand under SB 567, and this issue is pending in the California Supreme Court. (See People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted 12/14/2022 (S277314/A163476) [lead case].) The Court of Appeal here agreed with the courts that have held a defendant who stipulated to an upper term as part of a negotiated plea agreement is entitled to a remand under SB 567.
Defendant may pursue SB 567 relief on remand, but this may lead to his plea agreement being vacated. The court here agreed with the general description People v. Fox (2023) 90 Cal.App.5th 826 provided for the procedure on remand in this situation: “on remand De La Rosa may ‘waive or invoke the requirements of section 1170[(b)].’ [Citation.] If [De La Rosa] does not waive those requirements, the trial court must determine whether the upper term can be imposed in compliance with section 1170(b). If it can be so imposed, then the sentence will stand. But if it cannot, and the prosecution does not acquiesce to a reduced sentence or the trial court no longer approves of the plea agreement with the reduction, the court must return the parties to the status quo.” (Internal quotations omitted and alterations in original.) However, the court noted that, in practice, remand based on this issue will involve additional subsidiary decisions and possible courses of action. The court set out possible scenarios in detail to benefit the parties and the trial court. Additionally, the court cautioned that defendant may not want to undo his favorable plea agreement, which guaranteed that he would not receive an indeterminate life sentence. The court declined to decide whether defendant could be sentenced to a prison term greater than the aggregate eight-year term agreed to in the original plea agreement.