If One Agrees to Upper Term in Plea, Can SB 567 Apply?

Facing charges that included willful, deliberate, and premeditated attempted murder and carried a life sentence, Mariano Alejandro De La Rosa Burgara pleaded no contest to assault with a deadly weapon (Penal Code § 245(a)(1)) and hit and run driving  resulting in permanent, serious injury (Vehicle Code § 20001(b)(2)) and admitted a sentence enhancement of great bodily injury (Penal Code § 12022.7(a)).

In October, 2020, in accordance with Mr. Burgara’s negotiated plea bargain, Judge Charles E. Wilson in the Santa Clara Superior Court sentenced Mr. Burgara to an aggregate stipulated sentence of eight years in state prison, which included a four-year upper term for assault with a deadly weapon.  Pursuant to the plea bargain, the judge dismissed the charges for conspiracy to commit murder and willful, deliberate and premeditated attempted murder.

On January 1, 2022, Senate Bill No. 567 amended Penal Code § 1170(b) “to make the middle term the presumptive sentence for a term of imprisonment” unless aggravating circumstances were stipulated to by the defendant or proved true beyond a reasonable doubt to a jury or judge to justify imposition of the upper term.” People v. Lopez (2022) 78 Cal. App. 5th 459, 464.

Section 1170(1) states, “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).”

Under paragraph (2), it is stated that the court may consider a defendant’s prior convictions in deciding whether to depart from sentencing a defendant to the middle term.  Here, Mr. Burgara had no prior conviction.

Mr. Burgara then appealed his sentence to the Sixth Appellate District in San Jose, arguing that Senate Bill (SB) 567 altered the sentencing criteria for imposition of an upper term, so a resentencing remand was necessary.

The Attorney General conceded that SB 567 applied retroactively to Mr. Burgara’s sentence because the judgment was not yet final when the legislation took effect.  People v. Zabelle (2022) 80 Cal. App. 5th 1098, 1108-1109; People v. Flores (2022) 73 Cal. App. 4th 1032, 1039.  It is not clear why Mr. Burgara’s judgment was not final on January 1, 2022.

Nevertheless, the Attorney General argued that Mr. Burgara was not entitled to any relief under SB 567 because he entered into a negotiated plea agreement with the District Attorney that expressly called for imposition of the upper term.

The Sixth Appellate District noted at this point that there was a split of authority within the Courts of Appeal as to whether a defendant like Mr. Burgara, who received an upper term pursuant to a plea agreement that included a stipulated sentence, is entitled to remand under SB 567 (Compare People v. Todd (2023) 88 Cal. App. 4th 373, 381-382, review granted Apr. 26, 2023, People v. Fox (2023) 90 Cal. App. 5th 826, 831, review granted same date, People v. Mitchell (2022) 83 Cal. App. 5th 1051, 1057-1059, review granted Dec. 14, 2022 (defendant not entitled to remand) and People v. Sallee (2023) 88 Cal. App. 5th 330, 333-334, review granted April 26, 2023).  The Sixth District noted that the issue is before the California Supreme Court.

The Sixth Appellate District then held that it agreed with the rulings in Todd, supra, and Fox, supra, that a defendant who stipulated to an upper term as part of a negotiated plea agreement is entitled to a remand under SB 567.  The appellate court explained that this was so because the amendment to Penal Code § 1170(b) by SB 567 to make the middle term the presumptive term was a significant legal change that could affect the court’s evaluation of Mr. Burgara’s plea bargain’s fairness.

We will be quite interested in how the California Supreme Court rules on this issue, as we agree with the Sixth Appellate District that the changes implemented by SB 567 to sentencing discretion by a judge certainly makes an upper term less likely, so the plea bargain should be reevaluated for resentencing.