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Filed 8/24/23 P. v. Lee CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAWN THERESA LEE,

Defendant and Appellant.

C096700

(Super. Ct. Nos. F20-000004, 

F21-000054)

In separate criminal matters (case Nos. F20-000004 & F21-000054), defendant 

Dawn Theresa Lee pled guilty to one count of transportation or sale of a controlled 

substance and one count of possession of a controlled substance for sale (Health & Saf. 

Code, §§ 11378, 11379, subd. (a)); she also admitted an out-on-bail enhancement 

allegation that was attached to the latter count (Pen. Code, § 12022.1).1In accordance 

1

 Undesignated statutory references are to the Penal Code.
2

with the plea agreements in the two cases, additional charges were dismissed and 

defendant was sentenced to a stipulated state prison term of six years eight months

(including an upper term sentence of four years for violation of section 11379, 

subdivision (a)), execution of which was suspended and defendant was placed on formal 

probation for a period of two years, subject to various terms and conditions, including 

participation in the adult drug court program. Defendant’s grant of probation was 

ultimately revoked following two admitted probation violations. The trial court executed 

the suspended stipulated term of imprisonment, ordering five years six months to be 

served in local confinement and the concluding 14 months to be served on mandatory 

supervision.

On appeal, defendant contends the matter must be remanded for a new sentencing 

hearing because: (1) the changes to section 1170 made by Senate Bill No. 567 (2021-

2022 Reg. Sess.) (Senate Bill 567), limiting the trial court’s ability to impose an upper 

term sentence, apply to her case notwithstanding the fact that the upper term sentence she 

challenges on appeal was part of a stipulated sentence; (2) the changes to section 1385 

made by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81), requiring the trial 

court to consider and afford great weight to certain factors when deciding whether to 

strike an enhancement in the interest of justice, also apply to her case notwithstanding the 

stipulated sentence; and (3) the trial court abused its discretion and deprived her of a 

benefit of her plea bargain when it sentenced her to local confinement under section 

1170, subdivision (h), rather than state prison, where she would be entitled to early parole 

eligibility as a nonviolent offender under Proposition 57, the Public Safety and 

Rehabilitation Act of 2016.

We affirm. As we explain, although the ameliorative changes to sections 1170 

and 1385 made by Senate Bill 567 and Senate Bill 81, respectively, apply retroactively in 

this appeal, they do not apply to defendant’s stipulated sentence. In so concluding, we 

agree with People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted December 14, 
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2022, S277314, and disagree with People v. Todd (2023) 88 Cal.App.5th 373, review 

granted April 26, 2023, S279154 (Todd). We also conclude defendant has forfeited the 

contention that the trial court abused its discretion and deprived her of a benefit of her 

bargain when it sentenced her to a split sentence under section 1170, subdivision (h)

because defendant consistently asked the trial court for such a sentence and never asked 

to be sentenced to state prison.

BACKGROUND

Due to the nature of the contentions raised in this appeal, we need not recite the 

facts underlying defendant’s convictions or her violations of probation. The following 

summary of the procedural background will suffice.

In January 2020, the Nevada County District Attorney’s Office charged defendant, 

in case No. F20-000004 (first case), with three narcotics-related offenses, including one 

count of transportation or sale of a controlled substance. Defendant was arraigned on 

these charges and was thereafter released from custody after posting a bail bond.

In February 2021, defendant was charged, in case No. F21-000054 (second case), 

with one count of possession of a controlled substance for sale. The complaint further 

alleged that defendant committed this offense while released from custody on bail/own 

recognizance in the first case.

In August 2021, defendant entered negotiated pleas in both cases. The plea 

agreement in the first case indicated that defendant would plead guilty to one count of 

transportation or sale of a controlled substance, the remaining counts would be dismissed, 

and defendant would be sentenced to a stipulated upper term sentence of four years in 

state prison, execution of which would be suspended and defendant would be provided 

with the opportunity to participate in the adult drug court program. The plea agreement

in the second case indicated that defendant would plead guilty to possession of a 

controlled substance for sale, admit the out-on-bail enhancement, and would be sentenced 

to a stipulated sentence of two years eight months (eight months—one-third the middle 
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term—for that offense plus two years for the enhancement), execution of which would 

also be suspended so that defendant could participate in the adult drug court program. 

Defendant was specifically notified that if she “fail[ed] to satisfactorily complete drug 

court,” both the four-year term in the first case and the two-year, eight-month term in the 

second case “will be imposed . . . for a total of [six years eight months].”

At the plea hearing, the trial court specifically advised defendant that she “would 

be sentenced to a total of six years eight months for both cases . . . execution of that 

sentence would be suspended and [she] would be admitted to the adult drug court subject 

to a grant of probation.” Defendant stated she understood. The trial court further advised 

defendant: “Now, it would be the sincere hope of the Court as well as the parties that you 

successfully complete adult drug court. Do you understand, though, that if you did not 

successfully complete adult drug court that you would be sentenced to state prison for a 

sentence of six years and eight months?” Defendant answered, “Yes.” After receiving 

additional required advisements and waiving her constitutional rights, defendant pled 

guilty and admitted the enhancement allegation as contemplated by the plea agreements.

As promised, the trial court sentenced defendant to the agreed upon state prison 

term of six years eight months, execution of which was suspended and defendant was 

placed on formal probation for a period of two years, subject to various terms and 

conditions, including participation in the adult drug court program.

In March 2022, the Nevada County probation department submitted a report in 

both of defendant’s cases, informing the trial court that defendant committed two alleged 

probation violations. The following month, defendant admitted each violation. Based on 

the admissions, the trial court found defendant to be in violation of probation in both 

cases.

In July 2022, the trial court executed the suspended stipulated sentence of six 

years eight months, but ordered five years six months to be served in local confinement 
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with the concluding 14 months to be served on mandatory supervision. This appeal 

followed.

DISCUSSION

I

Senate Bill 567

Defendant contends the matter must be remanded for a new sentencing hearing 

because the changes to section 1170 made by Senate Bill 567 apply retroactively to her 

case notwithstanding the fact that the upper term sentence she challenges on appeal was 

part of a stipulated sentence. While we agree that the new law applies retroactively to 

this case, it does not benefit defendant because she was sentenced to a stipulated term of 

imprisonment.

Senate Bill 567, effective January 1, 2022, amended section 1170 to limit the trial 

court’s ability to impose an upper term determinate sentence by making the middle term 

the presumptive prison term unless specified circumstances exist. (§ 1170, subd. (b)(1)-

(2); Stats. 2021, ch. 731, § 1.3.) A trial court “may impose a sentence exceeding the 

middle term only when 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.” 

(§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1.3.)

As the People concede, this ameliorative change in the sentencing law applies 

retroactively to cases not yet final on appeal. (People v. Zabelle (2022) 80 Cal.App.5th 

1098, 1109.) The People argue, however, that defendant does not benefit from the 

change because the upper term sentence she challenges on appeal was imposed as part of 

a stipulated sentence to which she agreed in order to have the opportunity to participate in 

the drug court program. We agree with the People on this point.
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In People v. Mitchell, supra, 83 Cal.App.5th 1051, review granted, our colleagues 

at the First Appellate District held a defendant who agrees to a stipulated upper term 

sentence as part of a negotiated plea agreement is not entitled to relief under amended 

section 1170, subdivision (b). (Mitchell, at pp. 1057-1059.) This is because “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).’ (Italics added.) 

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.) There, as here, having approved the plea, 

the trial court had no discretion to “proceed as to the plea other than as specified in the 

plea.” (§ 1192.5, subd. (b).) Thus, the trial court “had 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).” 

(Mitchell, at p. 1058.) Moreover, as here, during the plea hearing, the trial court asked 

the defendant whether she understood the sentence to which she agreed had to be 

imposed when the matter reconvened for the sentencing hearing, without any argument 

for a lesser or greater sentence. The defendant said she understood. (Ibid.) Because the 

trial court did not “in its sound discretion, order imposition of a sentence . . . exceed[ing]

the middle term” (§ 1170, subd. (b)(1)), but rather imposed the sentence to which the 

parties agreed, the limitations placed on that discretion found in subdivision (b)(2) of the 

amended section did not apply. (Mitchell, at p. 1058.)

Stated simply, limitations placed on an exercise of discretion cannot logically 

apply where no discretion was exercised in the first place. Such is the case here. As in 

Mitchell, defendant agreed to an upper term sentence as part of a stipulated sentence. 

While the trial court possessed discretion to reject the bargained-for disposition and 

withdraw its approval of the plea agreement, it had no discretion to “ ‘change that bargain
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or agreement without the consent of both parties.’ ” (People v. Segura (2008) 44 Cal.4th 

921, 931.) But the trial court did not disapprove of the agreement. In exchange for 

defendant’s guilty pleas, admission to the out-on-bail enhancement, and agreement to a 

stipulated sentence including an upper term, additional counts were dismissed and 

execution of the stipulated sentence was suspended so that defendant could participate in 

the drug court program through a grant of probation. Before accepting defendant’s pleas, 

the trial court expressed its hope that she successfully complete the program and asked 

whether she understood that failure to do so would result in execution of the stipulated 

sentence. Defendant said she understood. Having approved this agreement, the trial 

court possessed no discretion to impose a sentence other than the one to which the parties 

agreed. We agree with the Mitchell court that Senate Bill 567’s amendments to section 

1170, subdivision (b) do not apply in these circumstances. (See also People v. Sallee

(2023) 88 Cal.App.5th 330, 337-338, review granted Apr. 26, 2023, S278690 [“the trial 

court did not exercise discretion with regard to the sentencing triad when it imposed the 

stipulated sentence set out in the negotiated plea agreement, and thus the amendments to 

section 1170 . . . are inapplicable under the plain language of the statute”].)

We are also persuaded by the reasoning in People v. Brooks (2020) 

58 Cal.App.5th 1099, which concluded section 1170.91, requiring the trial court to 

consider trauma resulting from military service as a mitigating factor when imposing a 

sentence, did not apply to a stipulated sentence because the trial court “ ‘never had any 

occasion to employ’ triad discretion [where] the defendant had agreed to a specific term 

of years in his plea bargain.” (People v. Sallee, supra, 88 Cal.App.5th at p. 339, review

granted; see also People v. King (2020) 52 Cal.App.5th 783, 793.)

Nevertheless, relying on Todd, supra, 88 Cal.App.5th 373, review granted, 

defendant argues the amendments to section 1170 made by Senate Bill 567 do apply 

notwithstanding the stipulated sentence. We acknowledge that Todd so held, disagreeing 

with Mitchell. The Todd court first distinguished Brooks as a case involving “additional 
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factors to be considered among many” in exercising sentencing discretion, whereas, 

amended section 1170, subdivision (b)(2) “prohibits the imposition of the upper-term 

sentence absent specific findings.” (Todd, at p. 378.) This is true, but does not account 

for the qualifying language of subdivision (b)(1) of the section: “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).” (§ 1170, subd. (b)(1), italics 

added.) We agree with Mitchell that where the trial court is not exercising “its sound 

discretion” in choosing between the three possible terms, as here, where defendant 

stipulated to the upper term in exchange for specific benefits, the trial court may impose 

that upper term sentence without complying with section 1170, subdivision (b)(2). Thus, 

we disagree with the Todd court’s statement that “the imposition of the aggravated term” 

in these circumstances “exceeds the court’s authority unless the statutory prerequisites 

are met or waived because the aggravated term cannot be imposed absent the court’s 

finding of those circumstances.” (Todd, at p. 379.) This interpretation either reads 

section 1170, subdivision (b)(2) in isolation, or it reads “in its sound discretion” out of 

section 1170, subdivision (b)(1), neither of which is appropriate. (See People v. Barasa

(2002) 103 Cal.App.4th 287, 291-292 [statutory provisions must be construed not in 

isolation but in the context of the entire statutory scheme, and an interpretation that 

renders related provisions nugatory must be avoided].)

The Todd court also relied on section 1016.8, subdivision (a)(1) of which states: 

“The California Supreme Court held in Doe v. Harris (2013) 57 Cal.4th 64 that, as a 

general rule, plea agreements are deemed to incorporate the reserve power of the state to 

amend the law or enact additional laws for the public good and in pursuance of public 

policy. That the parties enter into a plea agreement does not have the effect of insulating 

them from changes in the law that the Legislature has intended to apply to them.” (Italics 

added.) The court reasoned that following Mitchell “would render [the defendant’s] plea 
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bargain to a stipulated sentence the very waiver of ‘unknown future benefits of legislative 

enactments’ that the Legislature has deemed void as against public policy because his 

entry of plea on those terms was not ‘knowing and intelligent.’ ” (Todd, supra, 

88 Cal.App.5th at p. 380, review granted, quoting § 1016.8, subd. (a)(4).) Concluding 

that “the relevant question here is not whether the sentencing judge is bound by the 

parties’ stipulated sentence, but whether [the defendant] is entitled to the ameliorative 

effect of [the] new sentencing provisions,” the Todd court concluded People v. Stamps

(2020) 9 Cal.5th 685 compelled retroactive application of amended section 1170, 

subdivision (b) despite the stipulated sentence and remanded the matter to the trial court 

to allow the defendant to either waive or invoke these new requirements. (Todd, at 

pp. 380-381; see also People v. Fox (2023) 90 Cal.App.5th 826, 831-832.)

We do not dispute that Senate Bill 567’s changes to section 1170, subdivision (b) 

apply retroactively to defendant’s case. The People concede as much. In our estimation, 

however, the relevant question is whether the additional requirements of section 1170, 

subdivision (b)(2), read together with subdivision (b)(1), apply to a stipulated sentence. 

For the reasons already expressed, we conclude they do not.

We finally note that in People v. Kelly (2022) 87 Cal.App.5th 1, review granted 

March 22, 2023, S278503, in which our colleagues at the Second Appellate District held 

the new requirements of section 1170, subdivision (b)(6) do not apply to a stipulated 

sentence, the court observed: “There is a good reason for our holding today. Years ago, 

our Supreme Court held that a defendant may not retain the favorable aspects of a plea 

bargain and jettison its unfavorable aspects. [Citations.] As cogently stated in People v.

Couch (1996) 48 Cal.App.4th 1053, 1056-1057: ‘ “Where defendants have pleaded 

guilty in return for a specified sentence, appellate courts are not inclined to find error 

even though the trial court acts in excess of jurisdiction in reaching that figure, as long as 

the court does not lack fundamental jurisdiction. . . . The rationale behind this policy is 

that defendants who have received the benefit of their bargain should not be allowed to 
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‘trifle with the courts’ by attempting to better the bargain through the appellate 

process.” ’ ” (Kelly, at p. 8.)

Defendant has already received a tremendous benefit from her bargain. Execution 

of the stipulated sentence was initially suspended and defendant was granted probation so 

she could participate in the drug court program. Defendant participated in that program 

for six months. The stipulated sentence was executed only after she was unsuccessful in 

completing that program. Thus, notwithstanding the upper term of four years, 

defendant’s plea deal was very favorable to her, and only became unfavorable once she 

violated the terms of her grant of probation. She was clearly informed that failure to 

complete the program would result in execution of the stipulated sentence. These facts 

distinguish this case from Todd, and Stamps, where the parties could be returned to the 

status quo if the trial court decided to withdraw its approval of the plea agreement. Here, 

even if the trial court withdrew its approval of the plea agreement, the parties would not 

be returned to the status quo because defendant already received the main benefit of her 

bargain—the grant of probation. For this reason, even if we were otherwise inclined to 

agree with the Todd court’s reasoning, we do not believe the Legislature would have 

intended Senate Bill 567 to apply in these circumstances.

In sum, we agree with the analysis in Mitchell. Because the trial court did not 

exercise any discretion in selecting a lower, middle, or upper term when it imposed the 

stipulated sentence set out in the negotiated plea agreement, the amendments to section 

1170, subdivision (b) made by Senate Bill 567 do not apply.

II

Senate Bill 81

Defendant also claims the changes to section 1385 made by Senate Bill 81 apply 

retroactively to her case notwithstanding the stipulated sentence. We again agree on the 

question of retroactivity, but disagree that the changes apply to defendant’s stipulated 

sentence.
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Senate Bill 81, effective January 1, 2022, “amended section 1385 to specify 

factors that the trial court must consider when deciding whether to strike enhancements 

from a defendant’s sentence in the interest of justice.” (People v. Sek (2022) 

74 Cal.App.5th 657, 674; Stats. 2021, ch. 721, § 1.) As relevant here, subdivision (c)(1) 

of the amended statute provides: “Notwithstanding any other law, the court shall dismiss 

an enhancement if it is in the furtherance of justice to do so, except if dismissal of that 

enhancement is prohibited by any initiative statute.” (§ 1385, subd. (c)(1).) Subdivision 

(c)(2) then provides, in relevant part: “In exercising its discretion under this subdivision, 

the court shall consider and afford great weight to evidence offered by the defendant to 

prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. 

Proof of the presence of one or more of these circumstances weighs greatly in favor of 

dismissing the enhancement, unless the court finds that dismissal of the enhancement 

would endanger public safety.” (§ 1385, subd. (c)(2), italics added.)

Defendant asserts the following three enumerated circumstances apply to her, and 

therefore the trial court abused its discretion in failing to consider and afford great weight 

to them in deciding whether to strike her out-on-bail enhancement: “(D) The current 

offense is connected to mental illness. [¶] (E) The current offense is connected to prior 

victimization or childhood trauma. [¶] (F) The current offense is not a violent felony as 

defined in subdivision (c) of Section 667.5.” (§ 1385, subd. (c)(2)(D)-(F).) However, as 

we have already explained in considerable detail, the trial court did not exercise any 

discretion in imposing the stipulated sentence. For this reason, we also conclude the 

amendments to section 1385 made by Senate Bill 81 do not apply. (Cf. People v. Brooks,

supra, 58 Cal.App.5th at pp. 1106-1107; People v. King, supra, 52 Cal.App.5th at 

p. 793.)
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III

Proposition 57

Finally, defendant asserts the trial court abused its discretion and deprived her of a 

benefit of her bargain when it sentenced her to local confinement rather than state prison, 

where she would be eligible for early release on parole as a nonviolent offender under 

Proposition 57. The contention is forfeited.

A. Additional Background

The plea forms in this case have the box for “State Prison” checked. As 

mentioned, after accepting defendant’s guilty pleas, the trial court sentenced her to a 

“state prison” term of six years eight months, execution of which was suspended while 

defendant attempted to complete the drug court program.

After defendant admitted violating her grant of probation, she submitted a 

sentencing brief arguing that the trial court should strike the out-on-bail enhancement 

under section 1385, as amended by Senate Bill 81, and impose a split sentence under 

section 1170, subdivision (h), to be served in local confinement with a concluding portion 

to be served on mandatory supervision. She thereafter filed a revised sentencing brief, 

adding the assertion that the trial court should impose a lower or middle term sentence

under section 1170, subdivision (b), as amended by Senate Bill 567. However, she 

continued to ask for a split sentence under section 1170, subdivision (h). During 

defendant’s interview with the probation officer, she also “expressed a desire to receive a 

split sentence” because “[s]he felt it would be beneficial to her reintegration into the 

community, by assisting her with connection to local resources upon her release from 

custody.”

It was not until the People filed their response to defendant’s revised sentencing 

brief, arguing that the trial court should impose and execute the stipulated term of six 

years eight months, the full term to be served in local confinement without mandatory 

supervision, that defendant made the following argument in her reply brief, under the 
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heading “Other equity issues”: “Had Ms. Lee indeed incurred a state prison sentence, a 

sentence she apparently bargained for under [the attorney who represented her during the 

plea negotiation], her sentence would be subject to [Proposition] 57 because her charges 

are non-violent. This means she would be eligible for parole after serving the sentence 

for her primary offense: sans enhancement and subordinate term. She would also 

potentially receive the benefit of CDCR credits. If the district attorney is holding to the 

claim that the parties should receive the benefit of their bargain, Ms. Lee has a claim at 

least equal to the district attorney for enforcement of a bargained-for time of 

incarceration. Ms. Lee entered her plea bargain after passage of [Proposition] 57 and 

could reasonably expect its effects would apply to her.” However, defendant did not ask 

to be sent to state prison to serve her time. Instead, she asked for the same disposition 

she requested in her revised sentencing brief, i.e., to be resentenced to a lower term of 

imprisonment under Senate Bill 567 and Senate Bill 81 and serve that time in local 

confinement with a concluding period of mandatory supervision. Defendant’s reply brief 

concluded: “However, should the court deny one or more of those requests, the defense 

submits that Ms. Lee’s sentence should, at greatest, be the equivalent of the sentence she 

bargained for, taking into account the application of [Proposition] 57 to her sentence.”

At the sentencing hearing, defendant’s attorney made the same argument, and

again did not ask the trial court to send defendant to prison, where Proposition 57 would 

apply. Instead, counsel asked the trial court to impose a split sentence “consistent with

[Proposition] 57” and “convert whatever—whatever above and beyond the base term to 

[mandatory] supervision.”

The trial court found the argument to be “novel and interesting,” but concluded the 

check on the plea forms next to the state prison box was “erroneous,” it was “speculation 

as to what would or wouldn’t happen” with respect to defendant receiving early parole 

under Proposition 57 if she was sent to prison, and therefore, defendant’s argument did 

not change the court’s decision to reimpose and execute the stipulated term of 
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imprisonment, ordering five years six months to be served in local confinement and the 

concluding 14 months to be served on mandatory supervision. 

B. Analysis

“[T]he Criminal Justice Realignment Act of 2011 addressing public safety . . . 

significantly change[d] the punishment for some felony convictions. Under the terms of 

the Act, low-level felony offenders who have neither current nor prior convictions for 

serious or violent offenses, who are not required to register as sex offenders, and who are 

not subject to an enhancement for multiple felonies involving fraud or embezzlement, no 

longer serve their sentences in state prison. Instead, such offenders serve their sentences 

either entirely in county jail or partly in county jail and partly under the mandatory 

supervision of the county probation officer.” (People v. Scott (2014) 58 Cal.4th 1415, 

1418-1419; § 1170, subd. (h).) Setting aside the checked boxes indicating defendant was 

agreeing to be sentenced to state prison, she was entitled to be sentenced to a split 

sentence, partly in local confinement and partly on mandatory supervision, under this 

enactment. Defendant does not argue otherwise on appeal. Indeed, this is precisely what 

she asked the trial court to do, multiple times.

Proposition 57 does not apply to offenders sentenced to local confinement. That 

initiative “amended the California Constitution to provide, in relevant part, that ‘[a]ny 

person convicted of a nonviolent felony offense and sentenced to state prison shall be 

eligible for parole consideration after completing the full term for his or her primary 

offense.’ ” (In re Gadlin (2020) 10 Cal.5th 915, 919, italics added, quoting Cal. Const., 

art. I, § 32, subd. (a)(1).) To be sure, this provision would have applied to defendant had 

she been sentenced to state prison. But she was not sentenced to state prison. And at no 

point did she ask the trial court to sentence her to state prison. Instead, as described more 

fully above, she asked the trial court, as an equitable matter, to impose a split sentence 

under section 1170, subdivision (h) that was “consistent with” what she would be entitled 

to receive if she were sentenced to state prison. Specifically, because Proposition 57 
15

would entitle her to parole eligibility after she completed the full term for her primary 

offense, defendant asked the trial court to craft a similar split sentence under section 

1170, subdivision (h) and “convert whatever—whatever above and beyond the base term 

to [mandatory] supervision.”

Now, for the first time on appeal, defendant asserts the trial court abused its 

discretion by failing to sentence her to state prison because those boxes were checked on 

the plea forms and the trial court had no basis to conclude they were checked erroneously 

rather than to enable her to benefit from early parole consideration under Proposition 57. 

The argument is forfeited because, again, defendant never asked the trial court to 

sentence her to a state prison term. “A party on appeal cannot successfully complain 

because the trial court failed to do something which it was not asked to do . . . .” (In re

Cheryl E. (1984) 161 Cal.App.3d 587, 603; see also People v. Lilienthal (1978) 22 Cal.3d 

891, 896.)

In any event, the assertion that defendant bargained for a state prison term is 

belied by the record and defies reason. She bargained for an opportunity to participate in 

the drug court program through a grant of probation, which she received. When she 

failed to successfully complete that program, she repeatedly asked to be sentenced to 

local confinement under section 1170, subdivision (h). Had a state prison sentence been 

a material part of defendant’s bargain, one would think she would have asked the trial 

court to impose such a sentence. She did not. Instead, she asked for the benefit of 

Proposition 57 without having to serve her sentence in prison. Not only does this fail to 

preserve her appellate claim that the trial court should have sentenced her to prison, but it 

also confirms that serving time in prison was not something she desired as a part of her 

plea bargain.
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DISPOSITION

The judgment is affirmed.

 /s/

BOULWARE EURIE, J.

I concur:

 /s/

KRAUSE, Acting P. J.

I concur; as to parts I and II, I concur in the result:

 /s/

MESIWALA, J.