Senate Bill No. 567’s amendments to Penal Code section 1170, subdivision (b) apply retroactively to defendants sentenced to the upper term pursuant to a plea agreement to a stipulated term. As part of a plea agreement, Todd pleaded no contest to three counts of receiving stolen property in exchange for a stipulated sentence that included the upper term on one of the counts. On appeal, Todd argued he should be resentenced in light of SB 567. Held: Reversed and remanded for resentencing. As amended by SB 567, section 1170 provides that the trial court may impose an upper 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 or found true beyond a reasonable doubt at a jury or court trial. The parties agreed Todd was entitled to retroactive application of SB 567, but disagreed as to whether it afforded him any relief because his upper-term sentence was the result of a negotiated disposition. The Court of Appeal concluded that, absent the specific findings of aggravating facts justifying the upper term, or a valid waiver of these new requirements, imposition of the upper term was outside the discretion of the sentencing court. Here, reversal was necessary because the upper term was selected solely because it was a term of the plea agreement, and the trial court did not state any aggravating factors. On remand, Todd may choose to waive the new requirements of section 1170 and accept the plea bargain. (See People v. Stamps (2020) 9 Cal.5th 685.) Otherwise, the trial court must determine whether there are circumstances in aggravation that justify the imposition of the upper term sentence. If not, the trial court must withdraw approval of the plea agreement and return the parties to the status quo. [Editor’s Note: This issue is pending before the California Supreme Court in People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted 12/14/2022 (S277314/A163476).]
