Defendant who agreed to serve the upper term under a plea agreement is entitled to a remand to seek relief under Senate Bill No. 567 and the procedure set forth in People v. Stamps (2020) 9 Cal.5th 685 applies on remand. Fox was charged with eight felony counts, including two counts of attempted murder and several firearm enhancements, exposing him to a life sentence. He pleaded guilty and agreed to the upper term of 5 years for robbery plus 10 years for a firearm enhancement. After a remand for resentencing, Fox unsuccessfully moved for the trial court to exercise its discretion to strike the firearm enhancement. Fox again appealed. Held: Fox is entitled to a remand to seek resentencing under SB 567, which took effect while his appeal was pending. SB 567 amended Penal Code section 1170(b) to make the middle term the presumptive sentence unless aggravating circumstances admitted or proved beyond a reasonable doubt justify the upper term. The parties agreed that SB 567 applied retroactively to Fox’s case but disagreed whether Fox is entitled to any benefit from the amendment of section 1170(b). Applying the reasoning of Stamps, the Court of Appeal concluded a defendant who agreed to a specific term cannot be resentenced to the middle or lower term while retaining the other benefits of the plea bargain, but the defendant may still seek relief under SB 567 with the understanding that if the trial court grants relief, the plea bargain is unlikely to survive. Therefore, a remand was required to permit Fox to waive or invoke the requirements of section 1170(b). [Editor’s Notes: (1) There is currently a split in the Courts of Appeal on the issue of whether SB 567 applies to stipulated plea agreements and the issue is pending before the California Supreme Court. (People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057–1059, review granted 12/14/2022 (S277314).) (2) Fox originally argued that the sentencing court did not understand the scope of its discretion on remand to impose a lesser firearm enhancement under People v. Tirado (2022) 12 Cal.5th 688. Fox is permitted to raise his Tirado claim on remand.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A165462.PDF