Opinion
B318992
05-02-2023
THE PEOPLE, Plaintiff and Respondent, v. KEFE KENBREEMARK ATUSERI, Defendant and Appellant.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA116502, Teresa P. Magno, Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, Acting P. J.
INTRODUCTION
Defendant and appellant Kefe Kenbreemark Atuseri pled no contest to one count of robbery. In exchange for his plea, on the prosecution's motion, the trial court dismissed a second robbery count and prior strike conviction allegation. In conformance with the plea agreement, the trial court imposed a 3-year term of formal probation, a 120-day term in county jail, and a suspended upper prison term of 5 years. Later, after Atuseri was discovered in possession of a firearm, the trial court found he had violated probation, revoked probation, and executed the suspended five-year prison term. On appeal, Atuseri argues his case must be remanded for resentencing under Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567). Effective January 1, 2022, SB 567 amended Penal Code section 1170 by making the middle term the presumptive prison sentence.
All undesignated statutory references are to the Penal Code.
"Senate Bill 567 amended section 1170, subdivision (b) to specify that, when a sentencing court chooses a term from a statutory triad, the chosen term shall not exceed the middle term, unless the facts supporting the aggravating circumstances are (1) established by the defendant's stipulation to them, (2) proven to a jury (or to a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding Pen. Code, § 1170, subd. (b)(1)-(3), by amendment.)" (People v. Jones (2022) 79 Cal.App.5th 37, 44.)
The resolution of this case turns on whether SB 567 applies retroactively to defendants sentenced pursuant to stipulated plea agreements. That question is currently pending before our Supreme Court in People v. Mitchell (2022) 83 Cal.App.5th 1051 (Mitchell), review granted December 14, 2022, S277314. In Mitchell, the Court of Appeal held that SB 567 does not apply to defendants sentenced pursuant to stipulated plea agreements because, in such cases, trial courts do not "exercise any discretion . . . in selecting the lower, middle or upper term." (Mitchell, supra, at p. 1059.) As discussed below, we agree with Mitchell.
A list of pending issues on the Supreme Court's website states Mitchell presents the following question: "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?"
We omit recitation of the facts underlying Atuseri's conviction because they have no bearing on the issue presented in this appeal.
The Los Angeles County District Attorney filed a complaint charging Atuseri and two codefendants with two counts of second-degree robbery (§ 211; counts 1 and 2). The complaint alleged Atuseri sustained one prior strike conviction. (§§ 667; 1170.12.)
On April 27, 2021, Atuseri pled no contest to count one in exchange for the dismissal of count two and the prior strike allegation. Per the agreement, the trial court imposed a 3-year term of formal probation, a 120-day term of imprisonment in county jail, and a suspended upper prison term of 5 years.
While on probation, Atuseri was charged in a new case with possession of a firearm by a person convicted of a violent offense. (§ 29900, subd. (a)(1).) As a result of this new offense, the trial court found Atuseri in violation of his probation conditions and revoked probation.
Before Atuseri was resentenced on the robbery conviction, defense counsel argued the five-year upper term could no longer be imposed under newly-amended section 1170, subdivision (b), because no aggravating circumstances had been stipulated to by the defendant or found true beyond a reasonable doubt by a trier of fact. The trial court rejected the argument, noting that the five year sentence had been negotiated (and agreed to) by the parties.
Atuseri timely appealed.
DISCUSSION
On appeal, Atuseri argues that, despite his plea agreement, the upper five-year term he received is no longer authorized under SB 567, which applies retroactively to his non-final case. The Attorney General agrees SB 567 is retroactive, but argues it does not apply here because the trial court did not impose the upper term as an exercise of its own discretion, but rather to carry out the plea terms negotiated by the parties. Although we agree with the parties that SB 567 is retroactive (see In re Estrada (1965) 63 Cal.2d 740, 744-746, 748), we agree with the Attorney General that it does not apply to Atuseri's stipulated plea agreement. As Division Five of the First Appellate District explained in Mitchell, "[i]n the case 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." (Mitchell, supra, 83 Cal.App.5th at p. 1059.) "[Atuseri] agreed to a term of [five] years pursuant to a stipulated plea and the trial court simply sentenced [him] according to the terms of the plea agreement." (Ibid.) "The trial court therefore did not exercise any discretion under former section 1170, subdivision (b) in selecting the lower, middle, or upper term." (Ibid.) For the reasons expressed in Mitchell, we conclude SB 567 does not apply to Atuseri's case.
Additionally, because Atuseri knowingly waived his right to a jury trial in entering into the plea, "the concern raised in Cunningham v. California [(2007)] 549 U.S. [270] [ ][,]] 293 that a defendant's Sixth Amendment rights are violated when aggravating facts to support an upper term sentence are not found by a jury beyond a reasonable doubt does not exist here." (Mitchell, supra, 83 Cal.App.5th at p. 1059, italics omitted.)
The Fifth District Court of Appeal recently reached the same conclusion we reach here, following the reasoning and holding of Mitchell. (People v. Sallee (2023) 88 Cal.App.5th 330, 338-339, review granted April 26, 2023, S278690.)
We note that the Sixth Appellate District recently disagreed with Mitchell in People v. Todd (2023) 88 Cal.App.5th 373 (Todd). In disagreeing with Mitchell, Todd expressed the view that a plea is not knowing and intelligent under section 1016.8 if it requires a defendant to generally waive unknown benefits of future legislative enactments. (Todd, supra, at pp. 379-380.) We respectfully disagree with Todd as it does not, in our estimation, persuasively refute Mitchell's central point - that SB 567 is inapplicable when trial courts, by accepting stipulated plea agreements to upper terms, do not impose upper terms as an exercise of their own independent sentencing discretion, but instead merely carry out the terms agreed to by the parties. We also note that Atuseri's case is different from both Mitchell and Todd because here, Atuseri agreed to probation, and the trial court executed the suspended upper prison term only because Atuseri violated probation. Atuseri thus received a plea deal that was rather lenient, and only challenges the deal now that his circumstances have changed as a result of his own unlawful conduct following the plea deal. Given these circumstances, and because Atuseri was well-aware that the trial court would execute the upper term if he violated probation, we conclude it would not serve the interest of justice to remand the matter to the trial court for resentencing. It is difficult to envision that the Legislature, in enacting SB 567, intended cases such as Atuseri's to be remanded for resentencing. (See People v. Bullard (2020) 9 Cal.5th 94, 106 [courts must interpret statutes reasonably in order to avoid absurd results].)
Section 1016.8, subdivision (a)(4) provides: "A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent."
We likewise respectfully disagree with People v. Fox (April 20, 2023, A165462) Cal.App.5th, a recent case in which Division One of the First Appellate District followed the holding of Todd.
The parties raise conflicting arguments concerning the proper remedy assuming the case were remanded and the trial court were to conclude the imposition of the upper term was not justified by aggravating circumstances. Atuseri argues the proper remedy would be to withdraw the plea agreement and return the parties to status quo ante while precluding a total sentence exceeding that of the original stipulated plea agreement. The Attorney General contends the proper remedy would be to allow the prosecution the option to either (1) agree to modify the bargain to reflect a lower sentence; or (2) reject the modification, withdraw assent to the plea agreement, and proceed as if no agreement had ever existed. Because we conclude SB 567 does not apply to Atuseri, we need not address this matter.
DISPOSITION
The judgment is affirmed.
We concur: COLLINS, J. DAUM, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.