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Name: People v. Kelly
Case #: B318060
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 12/29/2022

Newly enacted Penal Code section 1170, subdivision (b)(6) (addressing imposition of the lower term when certain mitigating circumstances are present), does not apply to sentences imposed pursuant to a negotiated plea with a stipulated sentence. Pursuant to a negotiated plea agreement with a stipulated sentence, Kelly pleaded guilty to first degree residential burglary and admitted one prior strike, two prior serious felony enhancements, and seven prior prison terms. The trial court imposed the 18-year sentence the parties agreed to, which included a middle term for the burglary. Her first appeal was dismissed for lack of a certificate of probable cause. (People v. Kelly (2019) 32 Cal.App.5th 1013.) The California Supreme Court transferred the matter back to the Court of Appeal pursuant to People v. Stamps (2020) 9 Cal.5th 685. The court remanded the case to the trial court so it could decide whether to strike a prior serious felony enhancement based on Senate Bill No. 1393. On resentencing, one serious felony enhancement was stricken. Kelly appealed, arguing that the matter should be remanded again for the trial court to consider whether the lower term should be imposed pursuant to Assembly Bill No. 124. Held: Affirmed. Subdivision (b)(6) was added to section 1170 by AB 124 (see also Senate Bill No. 567). It requires imposition of the lower term if certain mitigating circumstances are present, unless the court finds them outweighed by aggravating factors. However, a plea agreement is essentially a contract between the parties. Once the trial court accepts the plea, it lacks discretion to alter the sentence absent the parties’ consent. Here, the trial court “had no discretion on resentencing to depart from the stipulated sentence regardless of whether appellant had ‘experienced psychological, physical, or childhood trauma’ within the meaning of section 1170, subdivision (b)(6)(A).” [Editor’s Note: A related issue is pending in the California Supreme Court in People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted 12/14/2022 (S277314). This case presents the following issue: Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?]