Is Full Resentencing Allowed on 1172.5 if Plea Bargain

In Riverside Superior Court in November, 2015, the Riverside County District Attorney filed a complaint alleging that Robert Otto Carter, Jr., committed two counts of attempted murder (Penal Code §§ 664, 187(a)) and one count of assault with a deadly weapon (Penal Code § 245(a)), specifically, a machete. The People further alleged that Mr. Carter serve a prior prison term (Penal Code § 667.5(b)) and was convicted of a strike prior (Penal Code §§ 667(c) and (e)(1), 1170.12(c)(1)).

In April 2016, the complaint was amended to add a second count of assault with a deadly weapon (Penal Code § 245(a)) and a great bodily injury allegation (Penal Code § 12022.7(a)). At that point, Mr. Carter pled guilty to both counts of assault with a deadly weapon and admitted the great bodily injury allegation, the prison prior, and the strike prior.

The parties stipulated to a 12-year sentence under the plea agreement, calculated as follows: for the first count of assault with a deadly weapon, the middle term of three years, doubled to six years due to the strike prior; for the second count of assault with a deadly weapon, one third the middle term of three years (one year), doubled due to the strike prior, run consecutively, for the great bodily injury enhancement, an additional and consecutive three years; and for the prison prior enhancement, an additional and consecutive one year. In May, 2016, the judge accepted and imposed the stipulated sentence.

In October, 2022, the California Department of Corrections and Rehabilitation (CDCR) referred Mr. Carter’s case to the trial court for recall and resentencing under newly enacted Penal Code § 1172.75(b) (under Senate Bill No. 483, which made changes previously implemented by Senate Bill No. 180).

The People filed an opposition to resentencing, arguing that although the judge had to strike the one-year prison prior from Mr. Carter’s sentence, it had no discretion to conduct a full resentencing because there had been a stipulated sentence per the parties’ plea agreement.

Mr. Carter filed a response, arguing that full resentencing was mandatory under § 1172.75 and the court was required to apply all new sentencing laws that reduce sentences or provide for judicial discretion. Mr. Carter also filed a motion to strike his strike prior (People v. Superior Court (Romero) (1996) 13 Cal. 4th 497), which the People also opposed.

In March 2023, after holding a hearing, Judge Randall Stamen issued a written resentencing order, concluding that Mr. Carter’s prison prior under § 667.5(b) was invalid and stricken. The judge also acknowledged that Mr. Carter “had taken advantage of the rehabilitative aspects of incarceration, earning several certificates of completion and letters of appreciation, “ and stated that if Mr. Carter’s “conviction and sentencing were not the product of an accepted plea bargain, the court could take [his] achievements into account at a full resentencing hearing.” However, the court agreed with the People that it did not have the authority to modify a negotiated sentence beyond striking the prison prior. It would otherwise divest the People of the benefit of their bargain. The judge also denied the Romero motion. It thus resentenced Mr. Carter to eleven years.

Mr. Carter then appealed this ruling to the Fourth Appellate District in Riverside, which reversed Judge Stamen and remanded the matter back to him for full resentencing.

The Fourth District quoted Penal Code § 1172.75, which provides “[a]ny sentence enhancement that was imposed prior to January 1, 2020 . . . except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.” The appellate court explained further that if an incarcerated defendant is serving a sentence that includes such a legally invalid enhancement, “the court shall recall the sentence and resentence the defendant.” Penal Code § 1172.75(c). Moreover, the “court shall apply . . . any other changes in law that reduce sentences.” § 1172.75(d)(2).

Here, nothing indicated in § 1172.75 indicated that sentences resulting from a plea agreement were exempt. Further, there was no question that section 1172.75 applied retroactively.

The appellate court also indicated that the did not mean the prosecution could withdraw from Mr. Carter’s plea agreement if the court imposed a lower sentence on remand.