Error and/or relief
In exchange for the defendant’s plea, the People dismissed nine other counts and the parties stipulated to a sentence between the range of five and 13 years in prison. On appeal, the defendant contends the trial court prejudicially erred by imposing the upper term sentence of 13 years based on aggravating factors that he did not stipulate to and were not found true beyond a reasonable doubt at a trial. We agree and reverse the judgment and remand for resentencing. The defendant may stipulate to the factors in aggravation. If he chooses not to stipulate, he may demand a trial by jury or court, at which the prosecution must prove beyond a reasonable doubt the aggravating factors. Unless the defendant stipulates to the factors in aggravation, if the prosecution does not prove them at trial, the court must impose a sentence no greater than the middle term.
First Holding:
Although the failure to obtain a certificate of probable cause generally bars an appeal following a guilty plea, a certificate of probable cause is not required to raise on appeal a claim, such as the one the defendant presents here, regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.
Authority:
PEN 1237.5
People v. Buttram (2003) 30 Cal.4th 773, 780, 790–791
Second Holding:
A defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary. A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. Thus, a waiver of appeal rights does not apply to possible future error, including sentencing error, that is outside the defendant’s contemplation and knowledge at the time the waiver is made.
Waiver is ordinarily a question of fact. The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. There is no dispute that when the defendant entered his plea he gave up his right to appeal any sentence stipulated in the plea agreement. Such a waiver may preclude an appellate challenge to the trial court’s imposition of a specific prison term that was stipulated in the plea agreement. What we must determine here, however, is whether the scope of such a waiver also includes a challenge to a trial court’s choice of a sentencing term from a stipulated range.
Authority:
People v. Patton (2019) 41 Cal.App.5th 934, 940–941
People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1662
People v. Panizzon (1996) 13 Cal.4th 68, 72–73, 85–86
Third Holding:
Buttram is instructive on the issue of waiver of the right to appeal. In considering this issue, the court distinguished Buttram’s case from cases involving plea agreements stipulating to a specified sentence, and found persuasive the argument that a negotiated plea term which provides for a maximum sentence, rather than a specified sentence, necessarily contemplates further adversary proceedings, in which the court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain.
The court further reasoned that, when the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. Finally, in determining Buttram’s appeal challenging the imposition of the maximum sentence was not precluded by his guilty plea, the court reasoned that an agreement for something other than a specified sentencing term, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be.
Authority:
People v. Buttram (2003) 30 Cal.4th 773, 782, 785, 790–791
Fourth Holding:
Here, the defendant stipulated to a sentencing range that set both the minimum and the maximum sentence but did not specify the exact sentence to be imposed. Nothing in the plea agreement dictates the terms by which the trial court would determine what sentence to impose from within the stipulated range. And nothing in the plea agreement stipulates that the trial court, in making its sentencing decision, would not be bound by section 1170(b), or the Sixth Amendment to the United States Constitution, which limit the ability of a trial court to impose an upper term sentence absent sufficient proof of aggravating factors.
Authority:
PEN 1170(b)(1) and (2)
Cunningham v. California (2007) 549 U.S. 270, 281 [under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence]
Fifth Holding:
Section 1170(b) generally provides that a sentence may not exceed the middle term, except when it finds aggravating circumstances justify a higher sentence. Both section 1170(b) and the Sixth Amendment require that these aggravating factors be stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. A court does not have discretion to impose an upper term sentence unless all the aggravating factors on which it relies have been sufficiently proven.
Authority:
Cunningham v. California (2007) 549 U.S. 270, 281
People v. Lynch (2024) 16 Cal.5th 730, 759 [An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial]
People v. Wiley (2025) 17 Cal.5th 1069, 1086
Sixth Holding:
The Courts of Appeal have split on the issue of whether a defendant, who stipulated to an upper term sentence pursuant to a plea agreement, is entitled to remand for consideration of the aggravating factors under section 1170, subdivision (b)(2), and the Supreme Court has granted review on this issue.
Gary LONG note: In this Sixth Holding, the appellate court is alluding to People v. Stamps (2020) 9 Cal.5th 685, although it does not actually mention Stamps. Stamps holds that if a defendant insists on taking advantage of ameliorative provisions in a case where the plea bargain specified the sentence, and the trial court changes the sentence based on those ameliorative provisions, either the prosecution or the court may set aside the original plea bargain entirely if not satisfied with the new sentence. But given a new statute, I wonder whether Stamps is still good law. (That is a “wonder if,” not a “statement of law.”) Effective 1/1/2025, section 1171 was enacted to give courts guidance on how to handle various amerliorative statutes.
Take a look at the excerpt from 1171(c)(3):
Penal Code section 1171(a): For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.
…
(c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.
…
(e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.
…
(f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.
On 5/18/2026, Mitchell (shown in this list of authorities relied on in the case) was decided by the Supreme Court. People v. Mitchell (2026) 19 Cal.5th 729. The Supreme Court did not rely on section 1171, but instead remanded for the procedure it outlined in Stamps–if the defendant gets what he wants, and the DA or the court is not happy with the modification, then the plea must be set aside. In its footnote 9, however, it stated,
“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 … sets forth procedures governing a ‘postconviction proceeding,’ which the statute defines as ‘a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.’ … At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”
I suspect the Supreme Court wanted to see how the lower courts are treating section 1171 before it chooses to weigh in. While I do not know if that IS what the Supreme Court had in mind, I think there is value in that approach from the perspective of establishing the law. When major issues are briefed by multiple attorneys in several different cases, and Courts of Appeal arrive at their decisions through their own means of arriving at a legal conclusion, it gives the broadest perspective for the Supreme Court to decide what makes the most sense. I repeat, that’s just my opinion.
I also want to point out that In People v. Montgomery (no longer a published opinion, but it was originally published at 100 Cal.App.5th 768 before the Supreme Court granted review and ultimately ordered the opinion to be depublished), the Supreme Court had before it a question on whether Stamps applied. The Court of Appeal had concluded that relief under section 1172.75 would not permit the DA or trial court from vacating the plea agreement (i.e., a NON-Stamps approach). In December 2024, just before section 1171 was to go in effect on January 1, 2025, the Supreme Court transferred the case back to the Court of Appeal in light of section 1171. Subsequently, the Court of Appeal issued an unpublished opinion in which it essentially affirmed its previous result–modification under section 1172.75 would not result in the plea being set aside in light of section 1171.
And if I may quote from Paul Harvey, “And now you know … the rest of the story.”
Authority:
People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted Feb. 21, 2024, S283452 [defendant entitled to remand]
People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted Apr. 26, 2023, S279154 [same]
People v. Fox (2023) 90 Cal.App.5th 826, 831 [same]
People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057–1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]
People v. Sallee (2023) 88 Cal.App.5th 330, 340–341, review granted Apr. 26, 2023, S278690 [same]
People v. Kelly (2022) 87 Cal.App.5th 1, 4, review granted Mar. 22, 2023, S278503 [same]