Filed 10/18/22 P. v. Sovalbarro CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEXANDER SOVALBARRO,

Defendant and Appellant.

 B317652

 (Los Angeles County

 Super. Ct. No. PA095723)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David Walgren, Judge. Affirmed.

Teresa Biagini, 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, Scott A. Taryle, Supervising Deputy 
2

Attorney General, Lindsay Boyd, Deputy Attorney General, for 

Plaintiff and Respondent.

_________________________

Alexander Sovalbarro pleaded no contest in June 2021 to 

one count of assault with a deadly weapon (Pen. Code, § 245, 

subd. (a)(1))1 and one count of disobeying a court order (§ 166, 

subd. (a)(4)). Pursuant to the parties’ negotiated plea agreement,

Sovalbarro was sentenced to the upper term of four years for 

aggravated assault with a one-year concurrent term for the 

misdemeanor charge; execution of sentence was suspended; and 

Sovalbarro was placed on four years of formal probation with 

various terms and conditions, including that he enter a 90-day 

treatment program and that he have no contact with the victim,

his former girlfriend and mother of his child, Claudia F.

Six months later Sovalbarro violated the terms of his 

probation by contacting Claudia F. Following Sovalbarro’s 

admission of the violation, the trial court terminated probation 

and ordered execution of the suspended sentence. On appeal 

Sovalbarro contends execution of the upper term sentence 

violated section 1170, subdivision (b), as amended by Senate 

Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) 

(Senate Bill 567), effective January 1, 2022, because no 

aggravating factors had been stipulated to or found true by a jury

and his prior conviction for domestic violence had not been 

established by a certified record. We affirm.

1 Statutory references are to this code.
3

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges and Sovalbarro’s Plea Agreement

Sovalbarro was charged in a six-count felony complaint, 

filed December 23, 2020, with one count of assault with a deadly 

weapon (a knife) upon Claudia F. (§ 245, subd. (a)(1)); one count 

of injuring a spouse, cohabitant or child’s parent, Claudia F.

(§ 273.5, subd. (a)); felony and misdemeanor counts of 

vandalizing Claudia F.’s property (§ 594, subd. (b)(1) & (b)(2)(A)); 

and two counts of willful disobedience of a court order (§ 166, 

subd. (a)(4)). According to the preconviction probation report 

Sovalbarro punched Claudia F., his former girlfriend of 

five years, and threatened her while holding a knife. The report 

also stated Sovalbarro had been convicted in June 2019 of 

misdemeanor spousal/cohabitant battery and was serving 

36 months of summary probation at the time of the charged 

offenses. 

On June 18, 2021, pursuant to a negotiated agreement,

Sovalbarro pleaded no contest to the aggravated assault count 

and one of the two counts of disobeying a court order. Asked by 

the court whether he concurred and stipulated “based on the 

report,” defense counsel responded, “Yes, pursuant to People v. 

West.” With respect to the agreed-upon sentence, the court asked 

Sovalbarro directly, “Do you understand what the agreement is, 

that you are going to receive execution of sentence suspended, 

high term of four years in state prison, which means you will be 

placed on probation. And if you violate any term or condition of 

probation and you are found in violation, you would be 

automatically sent to state prison for four years; not two years, 

not three years, but four years. Is that your understanding?” 

Sovalbarro answered, “Yes.” The court then asked, “Is there any 
4

question about that at all?” Sovalbarro answered, “No.” Finally, 

the court asked defense counsel, “Did you explain that to him, 

Mr. Farias?” Defense counsel responded, “Yes, Your Honor.”

The court then imposed and stayed execution of the agreed 

upper term sentence of four years for assault with a deadly 

weapon, placed Sovalbarro on four years of formal probation on 

condition that he serve 360 days in county jail (with credit for 

time served of 360 days), enter and remain in a 90-day 

residential drug treatment program, make restitution to the 

victim, stay at least 100 yards away from Claudia F., not 

threaten or harass her and obey the protective order issued in the 

case—all “pursuant to the plea agreement.” The court also 

imposed a one-year concurrent term for the misdemeanor 

violation of section 166, subdivision (a)(4), and dismissed all other 

counts pursuant to the parties’ plea negotiations.

2. The Probation Violation and Execution of Sentence

At a progress hearing concerning Sovalbarro’s domestic 

violence counseling on December 14, 2021, the prosecutor advised 

the court that she had received information that Sovalbarro sent 

threatening text messages to Claudia F. and was in violation of 

the terms of his probation. Sovalbarro denied the allegation. The 

court summarily revoked probation, set January 13, 2022 as the 

date to schedule a formal probation violation hearing and

remanded Sovalbarro to custody. 

At the setting hearing Sovalbarro’s counsel first argued 

that neither he nor Sovalbarro knew when Sovalbarro entered his 

plea that, as of January 1, 2022, a suspended sentence would be 

illegal, referring to section 1170, subdivision (b)(5), as amended 

by Senate Bill 567, which provides in part, “A term of 

imprisonment shall not be specified if imposition of sentence is 
5

suspended.”

2 The court responded, “But imposition of sentence 

wasn’t suspended. Execution of sentence is suspended.”

Counsel then argued new section 1170, subdivision (b)(2),

which specifies a court may impose an upper term sentence only 

when there are circumstances in aggravation stipulated to by the 

defendant or found true beyond a reasonable doubt at trial,

should apply to Sovalbarro, whose case was not yet final on 

appeal. Counsel stated Sovalbarro was willing to stipulate to 

having had contact with Claudia F., a violation of the terms of 

probation, but only that, and urged the court to impose a middle 

term sentence of three years.

The court, after acknowledging the new provisions of 

section 1170, subdivision (b), stated a prior conviction may be

considered as a factor in aggravation without a stipulation or

submitting the prior conviction to a jury and noted Sovalbarro 

had a prior conviction for domestic violence and was on summary 

probation at the time of the aggravated assault. The court 

stated, based on that prior conviction, “the four-year sentence 

would be appropriate.”

Sovalbarro disputed he was on probation at the time of the 

offenses and objected to the four-year sentence, but agreed to 

admit the probation violation. The court found his admission was

knowing and intelligent, found Sovalbarro in violation of the 

terms and conditions of probation, revoked probation and ordered 

executed the previously agreed-upon four-year sentence. 

2 Actually, this provision was part of section 1170, 

subdivision (b), when Sovalbarro entered his plea in June 2021

(see Stats. 2020, ch. 29, § 14), as it has been for decades (see, e.g., 

Stats. 1987, ch. 1423, § 2). 
6

DISCUSSION

1. Senate Bill 567

In Cunningham v. California (2007) 549 U.S. 270, 293 the

United States Supreme Court held California’s determinate 

sentencing law, which provided specified crimes were to be

punished by one of three statutory terms of imprisonment (the 

lower, middle or upper term), violated a defendant’s 

federal constitutional right to a jury trial under the Sixth and 

Fourteenth Amendments to the extent it authorized the trial 

judge to find facts (other than a prior conviction) by a 

preponderance of the evidence that subjected a defendant to the 

possibility of an upper term sentence. As the Court explained, 

“Because circumstances in aggravation are found by the judge, 

not the jury, and need only be established by a preponderance of 

the evidence, not beyond a reasonable doubt, . . . the [determinate 

sentencing law] violates Apprendi[ v. New Jersey (2000) 530 U.S. 

466]’s bright-line rule: Except for a prior conviction, ‘any fact 

that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt.’” (Id. at pp. 288-289.) 

Following the Supreme Court’s decision in Cunningham,

the Legislature amended section 1170, subdivision (b), effective 

March 30, 2007 as urgency legislation, to eliminate the statutory 

presumption for the middle term and, instead, to grant the trial 

court full discretion to impose the lower, middle or upper term. 

(Former § 1170, subd. (b); Stats. 2007, ch. 3. § 2 [“[w]hen a 

judgment of imprisonment is to be imposed and the statute 

specifies three possible terms, the choice of the appropriate term 

shall rest within the sound discretion of the court”]; see People v.

Sandoval (2007) 41 Cal.4th 825, 845.) As revised, section 1170 
7

permitted the sentencing court to impose any of the three terms, 

eliminated the requirement of weighing the circumstances in 

aggravation against those in mitigation before selecting the 

upper term and required the court only to state reasons for the 

decision to permit appellate review for abuse of discretion. (See 

Sandoval, at pp. 843, 847.) The Legislature explained the intent 

of the 2007 urgency legislation was “to maintain stability in 

California’s criminal justice system while the criminal justice and 

sentencing structures in California sentencing are being 

reviewed.” The urgency legislation had a January 1, 2009 sunset 

date, which was extended multiple times through January 1, 

2022. (See Stats. 2020, ch. 29, § 14.)

Senate Bill 567 was the Legislature’s more fundamental 

response to the Sixth and Fourteenth Amendment issues 

addressed by the United States Supreme Court in Cunningham 

v. California, supra, 549 U.S. 270. (See Sen. Com. on Public

Safety, Rep. on Sen. Bill No. 567 (2021-2022 Reg. Sess.) April 13, 

2021.) Among other changes to the determinate sentencing law, 

section 1170, subdivision (b)(1), now provides, “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).” Subdivision (b)(2), in turn 

provides, “The 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. . . .” Subdivision (b)(3) creates an 
8

exception to the limitation imposed by subdivision (b)(2), 

“Notwithstanding paragraphs (1) and (2), the court may consider 

the defendant’s prior convictions in determining sentencing based 

on a certified record of conviction without submitting the prior 

convictions to a jury.”

Because Senate Bill 567’s changes to section 1170, 

subdivision (b), limit the trial court’s discretion to impose the 

upper term of imprisonment, it is an ameliorative change in the 

law (see People v. Frahs (2020) 9 Cal.5th 618, 628) and, as such, 

applies retroactively to nonfinal judgments under the principles 

articulated by the Supreme Court in In re Estrada (1965)

63 Cal.2d 740, 742. (People v. Lopez (2022) 78 Cal.App.5th 459,

465 [“[t]he People properly concede that Senate Bill No. 567’s

ameliorative amendments to section 1170, subdivision (b) apply

retroactively to all cases not yet final as of January 1, 2022”;

People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [“[t]he People 

correctly concede the amended version of section 1170, 

subdivision (b) that became effective on January 1, 2022, applies 

retroactively in this case as an ameliorative change in the law 

applicable to all nonfinal convictions on appeal”]; see People v.

Esquivel (2021) 11 Cal.5th 671, 674 [“‘When the Legislature 

amends a statute so as to lessen the punishment[,] it has 

obviously expressly determined that its former penalty was too 

severe and that a lighter punishment is proper as punishment for 

the commission of the prohibited act. It is an inevitable inference 

that the Legislature must have intended that the new statute 

imposing the new lighter penalty now deemed to be sufficient 

should apply to every case to which it constitutionally could 

apply. The amendatory act imposing the lighter punishment can 

be applied constitutionally to acts committed before its passage 
9

provided the judgment convicting the defendant of the act is not 

final’”]; see also People v. Superior Court (Lara) (2018) 4 Cal.5th 

299, 307.)

2. The Trial Court Did Not Err by Ordering Execution of

the Previously Suspended Upper Term Sentence Agreed 

to by Sovalbarro in the Plea Negotiations

A case in which a defendant has been placed on probation 

with execution of an imposed state prison sentence suspended is 

not yet final for purposes of applying ameliorative legislation if 

the defendant, as here, could appeal an order revoking probation, 

causing the state prison sentence to take effect. (People v. 

Esquivel, supra, 11 Cal.5th at p. 673.) Thus, under Estrada

principles section 1170, subdivision (b), as amended by Senate 

Bill 567, would apply to Sovalbarro’s case. But as the Supreme 

Court cautioned in People v. Stamps (2020) 9 Cal.5th 685, 700, 

“The Estrada rule only answers the question of whether an 

amended statute should be applied retroactively. It does not 

answer the question of how that statute should be applied.”

Here, the answer to the “how” question is that the 

limitations on the exercise of sentencing discretion enacted by the 

Legislature in Senate Bill 567 do not affect the trial court’s

discretion to accept a plea agreement with a stipulated upper 

term sentence. A negotiated plea is, in essence, a contract

between the prosecutor and the defendant to which the court

agrees to be bound. (People v. Stamps, supra, 9 Cal.5th at p. 701;

People v. Shelton (2006) 37 Cal.4th 759, 767.) “‘“When a guilty

[or no contest] plea is entered in exchange for specified benefits

such as the dismissal of other counts or an agreed maximum

punishment, both parties, including the state, must abide by the

terms of the agreement.”’” (People v. Segura (2008) 44 Cal.4th
10

921, 930-931.) The trial court may decide not to approve the

terms of a plea agreement negotiated by the parties if it does not

believe the agreed-upon disposition is fair, but it cannot change

that bargain or agreement without the consent of both parties.

(Id. at p. 931.) If the court accepts the plea, “the court may not 

proceed as to the plea other than as specified in the plea.”

(§ 1192.5, subd. (b); see Stamps, at p. 701 [“[w]hile no bargain or 

agreement can divest the court of the sentencing discretion it 

inherently possesses [citation], a judge who has accepted a plea 

bargain is bound to impose a sentence within the limits of that 

bargain”].) 

Thus, when sentencing Sovalbarro, the court was not 

exercising its discretion to select a lower, middle or upper term 

and did not consider aggravating or mitigating factors; and 

section 1170, subdivision (b)(2)’s limitations on the imposition of 

an upper term sentence are not implicated. (People v. Mitchell

(Oct. 3, 2022, A163476) __ Cal.App.5th __, ___ [2022 Cal.App. 

Lexis 835, p. *8] [when sentencing appellant pursuant to a 

stipulated plea agreement, 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’”].)3 Moreover, when Sovalbarro agreed to the plea, he 

3 The trial court correctly pointed out it could consider a 

prior conviction as an aggravating factor without the defendant’s 

stipulation or submitting the matter to a jury. However, 

section 1170, subdivision (b)(3), requires that determination be 

based “on a certified record of conviction.” No certified record of 

Sovalbarro’s domestic violence conviction was presented to the 

court when Sovalbarro entered his plea or at the January 13, 

2022 hearing at which the stayed sentence was ordered executed. 

Although Sovalbarro did not object on this basis in the trial court
11

agreed to be bound by it and not to subsequently challenge the 

existence of any fact necessary to support his conviction and 

sentence. (See People v. Hester (2000) 22 Cal.4th 290, 295

[“[w]here the defendants have pleaded guilty in return for a 

specified sentence, appellate court will not find error even though 

the trial court acted in excess of jurisdiction in reaching that 

figure, so long as the trial court did not lack fundamental 

jurisdiction”]; Cal. Rules of Court, rule 4.412(a) [“[i]t is an 

adequate reason for a sentence or other disposition that the 

defendant, personally and by counsel, has expressed agreement 

that it be imposed and the prosecuting attorney has not 

expressed an objection to it”].)

People v. Brooks (2020) 58 Cal.App.5th 1099 (Brooks) 

supports this view. In Brooks the defendant agreed to a

stipulated sentence as part of a negotiated plea agreement.

(Id. at p. 1102.) After he was sentenced, the Legislature enacted

section 1170.91, which retroactively required the trial court to

consider trauma a defendant suffered as a result of military

service as a factor in mitigation when imposing a sentence under

section 1170. (Brooks, at pp. 1103-1104.) The trial court denied

the defendant’s petition to recall his sentence pursuant

section 1170.91, finding it was not authorized to resentence him

because he had stipulated to a specific term in his plea

agreement. (Id. at pp. 1102-1103.) The court of appeal affirmed,

(he insisted he had not been on probation when he assaulted 

Claudia F., but did not suggest he had not suffered the prior

conviction), the Attorney General does not argue the trial court 

properly relied on the prior conviction to satisfy section 1170, 

subdivision (b)’s new requirements for imposing an upper term

sentence and that any procedural error was, therefore, harmless.
12

concluding, because the defendant had stipulated to his sentence

in his plea agreement, the trial court had not applied judicial

discretion at the time it sentenced him and it had no power to do

so on resentencing because that would unlawfully modify the

terms of his plea agreement. (Id. at pp. 1106-1107.) That is, once 

the trial court accepted the plea agreement, it was required to 

impose the sentence to which the parties had agreed in their plea

bargain: “‘A trial court that sentences under subdivision (b) of

section 1170, exercises its discretion to choose an upper, middle

or lower determinate term based on its consideration of factors in

mitigation and aggravation. However, when a trial court

sentences a defendant who has agreed to a stipulated sentence

for a term of years, the trial court exercises no discretion to

decide between an upper, middle and lower term and may not

consider factors in mitigation and aggravation.’” (Id. at p. 1109;

accord, People v. Pixley (2022) 75 Cal.App.5th 1002, 1008; People

v. King (2020) 52 Cal.App.5th 783, 790-791.)

We recognize, as Sovalbarro argues in his reply brief,

4 that

section 1170.91, at issue in People v. Brooks, supra,

4 In his opening brief Sovalbarro did not directly address 

whether Senate Bill 567’s limitations on the exercise of 

sentencing discretion apply to the trial court’s discretion to accept 

a plea agreement with a stipulated sentence. He argued only 

that his no contest plea, although admitting the elements of the 

aggravated assault, did not constitute an admission of any 

aggravating circumstances (citing People v. French (2008) 

43 Cal.4th 36, 49) and the various factors identified by the trial 

court at the January 13, 2022 hearing as supporting the 

previously agreed-upon upper term four-year sentence (for 

example, that he was on probation when he assaulted Claudia F.) 

did not satisfy the new requirements of section 1170, 

subdivision (b)(2) and (3): He did not stipulate to any of them; 
13

58 Cal.App.5th 1099, mandated only that the trial court consider

an additional mitigating factor before imposing sentence—adding

a new consideration to an already existing determination—while

Senate Bill 567’s amendments to section 1170, subdivision (b),

preclude the trial court from imposing the upper term unless it

finds circumstances in aggravation. But, as discussed, in

deciding whether to accept the parties’ plea agreement with a

stipulated sentence, the trial court has no discretion to determine

whether to impose the middle or upper term—there is no triad

sentencing at all. The court either accepts the agreement as

negotiated or it does not. (People v. Stamps, supra, 9 Cal.5th at

p. 701; People v. Segura, supra, 44 Cal.4th at p. 931; People v. 

Mitchell, supra, __ Cal.App.5th at p. ___ [2022 Cal.App. Lexis

835, at p. *11] [“[a]ppellant agreed to a term of six years 

pursuant to a stipulated plea and the trial court simply sentenced 

appellant according to the terms of the plea agreement”].) Any

requirements or limitations on the court’s exercise of its

sentencing discretion, therefore, are simply not applicable. (See

People v. Hester, supra, 22 Cal.4th at p. 295; cf. People v. French

(2008) 43 Cal.4th 36, 49 [noting, in holding that a defendant

whose plea agreement included a sentence range was entitled at

a sentencing hearing to litigate matters relating to the trial

court’s choice of sentence, “defendant did not agree that a

specified sentence would be imposed”].)5

none was submitted to a jury; and his domestic violence 

conviction was not established by a certified record.

5 If, as in People v. French, a defendant’s plea agreement

provided for a sentence range that permitted, but did not require,

imposition of an upper term, and the defendant was thereafter 

sentenced to the upper term, resentencing pursuant to 
14

3. Sovalbarro Is Not Entitled to a Stamps Remand

Sovalbarro argues, as an alternative to his contention his

agreed-upon sentence must be reduced to the middle term of 

three years absent an admission of aggravating factors, that the 

cause should be remanded and the plea agreement rescinded if 

the prosecutor does not agree to the downward adjustment. This 

attempted analogy to the limited remand procedure authorized in

People v. Stamps, supra, 9 Cal.5th 685 is equally flawed. 

In Stamps the defendant entered into a plea agreement for 

a specified term that included a prior serious felony enhancement 

pursuant to section 667, subdivision (a). While his appeal was 

pending, Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2) went 

into effect, permitting the trial court to strike the serious felony

enhancement in furtherance of justice, which it was not

previously authorized to do. After rejecting the defendant’s 

argument he was entitled to have the cause remanded for the 

trial court to consider whether to strike the enhancement while 

otherwise maintaining the plea agreement intact—in effect, the 

relief Sovalbarro seeks with his request that his sentence be 

reduced to the middle term—the Supreme Court held the 

defendant could ask the trial court whether it would approve a 

new plea agreement without the enhancement. As the Court 

explained, if the court said no, “that ends the matter and 

defendant’s sentence stands.” (People v. Stamps, supra, 9 Cal.5th

at p. 707.) 

section 1170, subdivision (b), would be necessary in the absence 

of a stipulation to the facts supporting the upper term or a 

certified record of a prior conviction. (See People v. French, 

supra, 43 Cal.4th at pp. 48-49.)
15

That is precisely what happened at the setting hearing on 

January 13, 2022. Sovalbarro’s counsel asked the court to 

reconsider Sovalbarro’s agreement to a four-year, upper-term 

sentence (with execution suspended) in light of the passage of 

Senate Bill 567. The court responded the sentence remained 

appropriate. Under the Stamps model, assuming it applies,

Sovalbarro had no unilateral right to rescind the agreement. The

court’s decision not to reconsider the plea agreement ended the 

matter.6

It may be useful on a going-forward basis for the trial court, 

when taking a plea with a stipulated upper term sentence, to

have the defendant admit the aggravating factors necessary to 

support the upper term as part of the factual statement of the 

offense if for no other reason than to avoid the type of issue 

raised in this appeal. But Sovalbarro agreed to imposition of the 

upper term of four years for aggravated assault; and the trial 

court, in accepting the parties’ plea agreement, was bound to 

enforce it according to its terms. Sovalbarro has no right to 

resentencing under Senate Bill 567. 

6 In any event, Sovalbarro had already enjoyed the benefits 

of the plea agreement: He remained out of custody on probation 

for the second half of 2021. By the time he violated the 

conditions of probation and faced execution of the suspended

term of the plea agreement, it was far too late to seek rescission. 

(See People v. Hester, supra, 22 Cal.4th at p. 295 [“defendants 

who have received the benefit of their bargain should not be 

allowed to trifle with the courts by attempting to better the 

bargain through the appellate process”]; cf. Civ. Code, § 1691 [to 

effect a rescission a party must, among other things, “[r]estore to 

the other party everything of value which he has received”].)
16

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J. 

FEUER, J.