Defendant sentenced to upper term pursuant to a stipulated plea agreement was not entitled to relief based on Senate Bill No. 567’s amendments to Penal Code section 1170, subdivision (b). As part of his plea to first degree residential burglary, defendant entered a Cruz waiver and agreed that if he appeared for sentencing he would receive an eight-year sentence, but if he failed to appear he would receive twelve years (based on the upper term of six years doubled for a prior strike conviction). He failed to appear and was sentenced to twelve years. On appeal, defendant sought remand for resentencing pursuant to Senate Bill No. 567. Held: Affirmed. As amended by SB 567, section 1170, subdivision (b) now requires the trial court to impose the middle term unless circumstances in aggravation justifying the upper term have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. Here, the court imposed a stipulated sentence pursuant to a negotiated plea agreement. In so doing, the court’s discretion was limited to approving or rejecting the bargain. The court did not exercise discretion by selecting between the lower, middle, or upper term based on any aggravating or mitigating circumstances, and could not have done so while leaving the plea agreement otherwise intact. The limitations on the court’s sentencing discretion set forth in section 1170, subdivision (b) are therefore inapplicable in this context. [Editor’s Note: (1) There is a split of authority on this issue. (See People v. Todd (2023) 88 Cal.App.5th 373 [SB 567 applies to stipulated plea agreement].) (2) The issue is currently pending in the California Supreme Court in People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted 12/14/2022 (S277314/A163476) [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?].]
