Opinion
E079166
11-13-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAY ARMENDAREZ, JR. Defendant and Appellant.
Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Kathryn Kirschbaum and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB17004299, Cheryl C. Kersey and Gregory S. Tavill, Judges.
Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Kathryn Kirschbaum and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
Anthony Ray Armendarez, Jr., pled no contest to possession for sale of heroin alongside several enhancements. Per his plea agreement, the court suspended a sentence that included the upper term for the conviction and placed him on probation. Armendarez violated probation, and the trial court imposed the suspended sentence.
Armendarez argues recent changes in the law should apply to him and that those changes make it impossible for the trial court to impose the agreed upon term without making additional factual findings first. The People argue the plea agreement controls. In addition, the parties agree there is a discrepancy between the orally pronounced fines and assessments and the abstract of judgment but disagree about the proper remedy. We reverse and remand.
BACKGROUND
In May 2019, Armendarez pled no contest to possession for sale of heroin, a controlled substance. (Health &Saf. Code, § 11351.) He also admitted to one prior strike conviction (Pen. Code, §§ 1170.12, subd. (a)-(d), 667, subds. (b)-(e)) and one prior prison term (Pen. Code, § 667.5, subd. (b)). Per the terms of the plea agreement, the court placed Armendarez on probation with a suspended sentence of nine years. This sentence consisted of the upper term of four years, doubled due to the prior strike, with another year for the prison prior.
Unlabeled statutory citations are to the Penal Code.
In June 2022, the court found Armendarez violated his probation by being convicted of an unrelated offense in another case. The court revoked probation and imposed the suspended sentence after striking the prior prison term enhancement, which became invalid after a change in law. (§ 667.5, subd. (b).)
DISCUSSION
Armendarez argues there were two errors in his sentence. First, he argues that Senate Bill No. 567 (2021-2022 Reg. Sess.), which amended section 1170, subdivision (b), should apply to him retroactively, and that if it does, the court could not impose the upper term for his conviction without making certain factual findings. The People agree the amended statute applies to Armendarez but argue he deserves no relief because the trial court had no discretion to impose any other sentence than the one he agreed to.
Second, Armendarez argues the trial court erred because it did not orally pronounce any fines or assessments but recorded that it imposed them in its minute order and abstract of judgment. The People agree there is a mismatch between the court's oral orders and its written ones but disagree about what that error is and what remedy Armendarez is due.
A. Senate Bill No. 567 and Negotiated Sentences
Effective January 1, 2022, Senate Bill No. 567 (Senate Bill 567) changed section 1170, subdivision (b), "to make the middle term the presumptive sentence for a term of imprisonment." (People v. Lopez (2022) 78 Cal.App.5th 459, 464.) "[A] court now must impose the middle term for any offense that provides for a sentencing triad unless '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 by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.'" (Ibid., quoting § 1170, subd. (b)(1) &(2).) These changes apply retroactively to all cases that were not final as of January 1, 2022. (People v. Lopez, at p. 465.) As the People concede, this includes Armendarez's case, which was not final before the change's effective date.
While the parties agree that Senate Bill 567 applies to Armendarez retroactively, they disagree whether this change in the law offers Armendarez any relief. Indeed, so have several appellate panels. People v. Mitchell (2022) 83 Cal.App.5th 1051 (Mitchell), review granted December 14, 2022, S277314, first concluded that these changes do not affect defendants serving stipulated sentences. However, we requested supplemental briefing to address a case in conflict with Mitchell: People v. Todd (2023) 88 Cal.App.5th 373 (Todd), review granted April 26, 2023, S279154. In supplemental briefing, the parties further identified two additional cases, People v. Sallee (2023) 88 Cal.App.5th 330 (Sallee), review granted April 26, 2023, S278690, which agrees with Mitchell, and People v. Fox (2023) 90 Cal.App.5th 826 (Fox), which agrees with Todd.
Our Supreme Court has granted review in Mitchell, but lower courts may cite Mitchell for its persuasive value in the meantime. (Mitchell, supra, 83 Cal.App.5th 1051; California Rules of Court, rule 8.1115(e)(1).)
Mitchell's view is that trial courts imposing stipulated sentences by pleas have "no opportunity to exercise any discretion in deciding whether the imposition of the upper, middle, or lower term would best serve 'the interests of justice' under former section 1170, subdivision (b). Indeed, when presented with a stipulated plea agreement, a trial court may either accept or reject it." (Mitchell, supra, 83 Cal.App.5th at p. 1058.) Meanwhile, "amended section 1170, subdivision (b)(1) states that where an offense provides for a sentencing triad, the trial court 'shall, in its sound discretion, order imposition of a sentence not to exceed the middle term except as otherwise provided in paragraph (2).' . . . This language indicates that the statute was not intended to apply to sentences imposed pursuant to a stipulated plea agreement, as the trial court lacks discretion to select the sentence in the first place." (Id. at p. 1058, italics omitted.) According to Mitchell, "where there is a stipulated plea like here, there is no occasion for the trial court to find any aggravating facts in order to justify the imposition of an upper term at sentencing." (Id. at p. 1059.) The People argue we should follow Mitchell.
On the other hand, Todd, supra, 88 Cal.App.5th 373, relying on our Supreme Court's decision in People v. Stamps (2020) 9 Cal.5th 685 (Stamps), held that Senate Bill 567 provides limited relief to defendants like Armendarez. In Stamps, our Supreme Court considered the retroactive applicability of then recent changes in the law which allowed courts to strike serious felony enhancements which were previously mandatory. Stamps had a negotiated sentence which included a serious felony enhancement and sought remand to allow the trial court to potentially strike it. (Id. at pp. 699-700.)
Stamps held that the change in the law was retroactive and provided some relief. The limited relief the court offered was that a "defendant should be given the opportunity to seek the court's exercise of its . . . discretion. If the court on remand declines to exercise its discretion . . ., that ends the matter and defendant's sentence stands." (Stamps, supra, 9 Cal.5th at p. 707.) "However, if the court is inclined to exercise its discretion . . . such a determination would have consequences to the plea agreement.... If the court indicates an inclination to exercise its discretion . . ., the prosecution may, of course, agree to modify the bargain to reflect the downward departure in the sentence such exercise would entail. Barring such a modification agreement, 'the prosecutor is entitled to the same remedy as the defendant-withdrawal of assent to the plea agreement ....'" (Ibid.) Upon exercise of its discretion, a court may also "withdraw its prior approval of the plea agreement," as "[t]he court's exercise of its new discretion to strike the serious felony enhancement, whether considered a new circumstance in the case or simply a reevaluation of the propriety of the bargain itself, would fall within the court's broad discretion to withdraw its prior approval of the plea agreement." (Id. at p. 708.)
Under Stamps, then, retroactive changes in law entitle defendants with cases that are not final to reconsider their negotiated pleas with full information about the governing law. However, a defendant who wishes to change his or her plea could dismantle the negotiated sentence and return the parties to a pre-plea agreement state if either the People or the court withdraws their assent to the agreement.
Todd and Fox conclude that Stamps's reasoning applies to cases about retroactively applying Senate Bill 567. As Fox states, "section 1170(b)-like section 1385 (the statute at issue in Stamps)-involves a trial court's 'exercising [of] its discretion' to make a sentencing choice." (Fox, supra, 90 Cal.App.5th at p. 834.) "By the same reasoning [as in Stamps], although 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, the defendant may still seek relief under Senate Bill No. 567 with the understanding that if the trial court grants relief, the plea bargain is unlikely to survive." (Ibid.) "Indeed, whereas under Senate Bill No. 1393 [the bill considered in Stamps] a sentence is lawful regardless of whether a trial court exercises its discretion to strike an enhancement, under Senate Bill No. 567 an upper-term sentence is not even authorized unless aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt. [Citations.] Thus, the statutory amendment here warrants a remand even more clearly than did the one in Stamps." (Ibid.)
In addition, after we received supplemental briefing on this apparent split in authority, our Supreme Court issued another opinion that arguably charts a third path. We requested additional supplemental briefing from the parties to address that opinion, People v. Prudholme (2023) 14 Cal.5th 961 (Prudholme).
In Prudholme our Supreme Court considered whether and how recent changes to the law capping the maximum probation term for many crimes applied to non-final pleas. Rather than follow Stamps, the court in Prudholme held that remand was not necessary, the People should not be given an opportunity to withdraw from the plea deal, and the appropriate remedy was to unilaterally reduce the pled for sentence to match the new maximum probation term. (Prudholme, supra, 14 Cal.5th at p. 978.) The court held that adopting Stamps would undermine the legislative goals of the statute, which intended to reduce probation lengths across the board and reduce incarceration for probation violations because "if the bargained-for statutory probation term is now considered insufficient, the People's only recourse would be to require a plea to a more serious offense, making Assembly Bill 1950's two-year probation limit inapplicable, or to seek a prison term. It seems doubtful the Legislature intended that its ameliorative action would transform plea bargains for probationary terms into dispositions calling for admission of a more serious offense or a state prison sentence." (Prudholme, at p. 977.) The court also held that "[r]educing defendant's probationary term from three to two years here would not so 'fundamentally alter[] the character of the bargain' that the People should have an opportunity to withdraw from the plea agreement" (id. at p. 978), in part because it would not offer Prudholme total relief, and "even assuming a modification granting less than total relief to a defendant could still fundamentally alter a plea bargain under some circumstances, the People here agreed to a disposition that included a probationary term for less than the maximum period of five years allowed under then-existing law." (Id. at p. 979.) Generally, Prudholme advised that courts facing similar contests between ameliorative sentencing changes and section 1192.5's prohibition on modifying plea agreements should look to the Legislature's intent in passing the ameliorative law and effect that intent. (Prudholme, at pp. 975-976.)
We are persuaded by the reasoning in Todd and Fox, unpersuaded by Mitchell and Sallee, and conclude under Prudholme's guidance that the remedy outlined in Stamps is appropriate here. First, neither Mitchell nor Sallee so much as address Stamps, the most applicable controlling precedent in this area. Instead, Mitchell and Sallee hold that section 1170, subdivision (b), does not apply when a trial court takes a plea with an agreement to a stipulated sentence because the trial court is not exercising sentencing discretion under section 1170, subdivision (b). But as Stamps points out, the court's power to accept or reject a stipulated plea is itself an exercise of its discretion. Indeed, Stamps stated that "[t]he court's exercise of its new discretion to strike the serious felony enhancement . . . would fall within the court's broad discretion to withdraw its prior approval of the plea agreement." (Stamps, supra, 9 Cal.5th at p. 708.)
The People cite People v. King (2020) 52 Cal.App.5th 783 (King) for the proposition that "when a trial court sentences a defendant who has agreed to a stipulated sentence for a term of years, the trial court exercises no discretion to decide between an upper, middle and lower term and may not consider factors in mitigation and aggravation," and "[t]herefore, the trial court is not 'imposing a term under subdivision (b) of Section 1170.'" (Id. at p. 791.) However, King dealt with whether a defendant could petition to have their sentence recalled based on a change in the law, not whether a change in the law applies directly to an extant plea agreement. For that reason, we conclude Stamps, not King, governs this case, and that King's analysis of a trial court's discretion or lack thereof when accepting a plea does not apply in this case.
Here, it is conceivable that the trial court would not have accepted Armendarez's plea agreement under the law as it exists now-at least without a factual basis for the upper term, now that the middle term is presumptive without one. That is, just because a court cannot modify the terms of a plea agreement does not mean it lacks any discretion when imposing those terms, as it can always reject the agreement entirely. Remanding would give Armendarez an opportunity to consider his plea while informed of the applicable law after Senate Bill 567, and it allows the trial court to re-evaluate the propriety of Armendarez's sentence given current law.
We disagree with the People that Todd's interpretation will "lead to absurd consequences" by allowing a defendant to "enter a plea of guilty or no contest and specifically agree to an upper term sentence, while nonetheless asserting a right to later challenge the court's selection and imposition of that sentence." The reservation of a right comes only if the Legislature changes the applicable law before the case is final, and such a reservation generally operates as a matter of law under section 1016.8. It is not absurd to allow a remand to potentially reopen a plea agreement where the change in the law means the factual basis may not have covered the upper term sentence. If the defendant had agreed to a factual basis that supported the upper term, there might be no basis to challenge the sentence. As Fox stated, "[i]f a defendant agrees to the upper term and also stipulates to a factual basis for the plea, we see no reason why the defendant would 'nonetheless [be able to] assert[ ] a statutory right under section 1170[(b)(2)] . . . to a jury trial on aggravating factors supporting the agreed-upon upper term.' [Citation.] Although defendants may now be less inclined to agree to upper-term sentences, section 1170(b)'s requirements impose no unworkable obstacles to reaching such agreements." (Fox, supra, 90 Cal.App.5th at p. 834.)
This remedy is also in line with the legislative intent of Senate Bill 567, which Prudholme counsels should be the final determinant in cases like this. Though we disagree with Mitchell's conclusions, it nonetheless summarizes the history and intent of Senate Bill 567 well. As Mitchell correctly explains, "[p]rior to 2007, an older version of section 1170, subdivision (b) provided that the middle term was the presumptive term but authorized the trial court to impose the upper term if it found any aggravating circumstances." (Mitchell, supra, 83 Cal.App.5th at p. 1056.) However "[i]n 2007 the United States Supreme Court found this sentencing scheme unconstitutional and stated, 'under the Sixth Amendment, any fact that exposes a defendant to a greater sentence must be found by a jury, not a judge, and established beyond a reasonable doubt.'" (Ibid., quoting Cunningham v. California (2007) 549 U.S. 270, 281 (Cunningham).) In response "the California Legislature amended section 1170 to provide the 'trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term.'" (Mitchell, at p. 1056.) As Mitchell points out, Senate Bill 567 was an effort to take the other avenue Cunningham offered: that is, to again make the middle term the presumptive term, again require aggravating factors to impose an upper term, but to now require the prosecution to provide proof of those aggravating factors beyond a reasonable doubt. Indeed, the author of Senate Bill 567 "noted that Senate Bill 567 would ensure' "that aggravating facts are presented to the jury before a judge imposes a maximum sentence as decided in Cunningham v. California"' and that' "individuals facing time have the ample ability to dispute information in the record that might not be true." '" (Mitchell, at p. 1059.)
In addition, Senate Bill 567 was intended to address" 'the mass incarceration trend in American and California societies that has been part of the policy framework of the carceral system for decades.'" (Assem. Com. on Public Safety, Analysis of Sen. Bill. No. 567 (2021-2022 Reg. Sess.) as amended May 20, 2021, p. 3.) The author of Senate Bill 567 argued" '[t]hat trend in our carceral system has been a collective detriment that needs to be reversed, and this bill is a small step in the right direction.'" (Ibid.) According to the author" 'studies . . . show that long sentences do not deter people from committing crime and are counter-productive to rehabilitating people and bringing them back to the fold of our society,'" and therefore," 'we need to ensure that the harshest sentences receive the greatest scrutiny and justification.'" (Ibid.) The author also explained that" 'the option of stipulating to the aggravated facts in lieu of a finding by the jury,'" was strictly" 'for the purpose of efficiency and cost savings, should the defendant chose [sic] to forego his or her constitutional rights.'" (Id. at p. 4.)
Given this legislative history, we conclude the remedy outlined under Stamps, Todd, and Fox is the appropriate one, rather than the remedy outlined in Prudholme. Though the bills in Prudholme and the bill here were both intended to reduce incarceration rates, the bill in Prudholme was an across-the-board reduction that applied equally to all defendants regardless of the facts of their underlying offense. Senate Bill 567, on the other hand, did not automatically reduce the possible length of confinement for a class of crimes. Instead, it required the People prove certain aggravating facts to impose the harshest possible sentence. This is a meaningful distinction. As Prudholme noted, when the Legislature "adopted an across-the-board approach, notwithstanding arguments for a more case-specific consideration," it " 'signaled its view that, for an eligible defendant, a shorter period of probation generally serves the public's interests, regardless of how a conviction was secured.'" (Prudholme, supra, 14 Cal.4th at p. 977.) Indeed, Prudholme rejected the Stamps remedy because of this distinction, as such a remedy would necessarily reintroduce case-specific determinations when the People tried to renegotiate the terms of the deal.
No such similar consideration applies here. Senate Bill 567 is necessarily a case-specific ameliorative change, as an upper term is still possible where the People can prove or a defendant is willing to stipulate to aggravating facts supporting such a term. Given this, the Stamps remedy is appropriate here in a way it was not in Prudholme. The underlying legislative purpose of Senate Bill 567, after all, is to "ensure that the harshest sentences receive the greatest scrutiny and justification," not merely to categorically reduce sentences. (Assem. Com. on Public Safety, Analysis of Sen. Bill. No. 567 (20212022 Reg. Sess.) as amended May 20, 2021, p. 3.) Providing defendant the option to waive or invoke the benefits of Senate Bill 567, and the People and court the option to renegotiate the deal or start over from scratch, serves the purpose of requiring greater scrutiny of upper term sentences without violating section 1192.5, subdivision (b)'s prohibition against modifying the plea.
Accordingly, the appropriate remedy is to "remand the matter to permit [the defendant] to waive or invoke the requirements of section 1170, subdivision (b)." (Todd, supra, 88 Cal.App.5th at p 381.) If Armendarez invokes 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.'" (Fox, supra, 90 Cal.App.5th at p. 835.)
B. Errors in Fines and Assessments
Government Code section 70373, subdivision (a)(1), requires a court to impose a $30 assessment "on every conviction for a criminal offense." Similarly, Penal Code section 1465.8, subdivision (a)(1), requires a court to impose a $40 assessment "on every conviction for a criminal offense." Under Penal Code section 1202.4, subdivision (b), the court must also "impose a separate and additional restitution fine," in every case. If the defendant was convicted of a felony, the minimum amount of that fine is $300. (Pen. Code, § 1202.4, subd. (b)(1).) Under Penal Code section 1202.45, subdivision (a), the court must impose a parole revocation restitution fine "[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole." This fine should be "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (Pen. Code, § 1202.45, subd. (a).) Finally, "[i]n every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall . . . assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (Pen. Code, § 1202.44.) Every one of these fines and assessments is mandatory.
The trial court may only decline to impose a restitution fine under section 1202.4 if "it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).)
When the court first placed Armendarez on probation, it imposed a $70 "court conviction and transportation" assessment, a "$300 restitution fine," and a "$300 probation revocation restitution fine." When the court finally imposed the suspended sentence, it did not orally pronounce any fines, fees, or assessments. Nevertheless, the minute order reflects a $70 court operations fee and a $300 fine under section 1202.5. The abstract of judgment is different again, agreeing on the $300 fine, but recording a separate court operations assessment for $40 and a conviction assessment for $30. Both the minute order and abstract of judgment contend the $300 fine is under section 1202.5, which only applies to convictions for various theft related crimes.
Thus, it is unclear from the record here whether the trial court imposed the mandatory fines and assessments, and if so which ones. The trial court that sentenced Armendarez imposed the proper restitution fines but ordered one $70 fee rather than the $30 assessment under Government Code section 70373 and the $40 assessment under Penal Code section 1465.8. The court that imposed the suspended sentence, on the other hand, did not orally pronounce any fines or assessments. It then prepared an abstract of judgment which recorded a restitution fine from an irrelevant statute but properly delineated the two assessments. Meanwhile, the minute order matches neither the oral pronouncement nor the abstract of judgment, as it combines the assessments and imposes a restitution fine under the wrong statute.
In our view there is no accurate, adequate oral pronouncement of the appropriate mandatory fines and assessments from any court. Therefore, we remand to permit the trial court to orally impose the appropriate fines and assessments, and to correct the abstract of judgment to match that new oral pronouncement. (See, e.g., People v. Zackery (2007) 147 Cal.App.4th 380, 387-389 [when a court fails to orally pronounce mandatory fines under sections 1202.4 or 1202.45, the appropriate remedy is to remand rather than have either the clerk or the appellate court unilaterally change the written order].)
DISPOSITION
We reverse and remand with instructions to orally pronounce any appropriate fines, fees, or assessments, and to amend the sentencing minute order and abstract of judgment to reflect these fines, fees, and assessments. The trial court shall prepare an amended minute order and abstract of judgment and forward certified copies to the Department of Corrections and Rehabilitation.
Additionally, on remand Armendarez may request relief under Senate Bill 567. If he does so, the trial court shall determine whether the upper term could be imposed given the changes in the law. If not, the prosecution may agree to keep the plea agreement in place but substitute a middle term sentence for the existing upper term. However, if any party or the trial court chooses to withdraw their assent to the plea agreement rather than allow this change, the court shall return the parties to the position they were in before Armendarez's plea, with the case open for trial.
We concur: RAMIREZ P. J., FIELDS J.