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

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IN THE COURT OF AP PEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEXANDE R 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 Ap peal,

for Defendant and App ellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Scott A. Taryle, Supervising Deputy2

Attorney General, Lindsay Boy d, Deputy Attor ney 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 ord er ( § 166,

subd . (a)(4)) . P ursuant to the parties ’ neg oti ated plea agreement,

Sovalb arro was sentenced to the upper term of four years for

aggravated assault with a one

- year concurrent term for the

misde meanor charge ; e x ecutio n of sentence was suspended ; and

So valbarro was placed on four years of formal probation with

various terms and co nditions, including that he enter a 90

- day

treatment program and that he have no contact with the victim

, his former girlf

riend and mother of his child , C laudia F.

Six mon ths later S o val barro violated the terms of his

probation by contacting Claudia F. Fo llowing S o valb arro ’ s
admission of the violation, t he trial court terminated probation

and order ed execution of the sus pended sentence. On appeal

Sovalbarro contends execu tion of the upp er term sentence

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

B il l 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 s tipulated to or found tru e by a jury

and his prior conviction for domestic violence had not bee n

estab li shed by a certified record. We affirm.

1 Sta t utor y references are t o thi s code.3 FACTUAL AND PRO CEDURAL BACKGROUND

1. The Charges and Sovalb arro ’ s Plea Agreement

Sovalbarro wa s charged in a six

- count felony complain t,

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

we apon (a k nife) upon C laudia F

. ( § 245, subd. (a)(1)); one count

of injur ing a spouse
, c ohabitant or child ’ s parent

, Claudia F.

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

vand al izing Claudi a F. ’ s property ( § 594, subd. (b)(1) & (b)(2) (A));

and t wo count s of wil lful disobedi ence of a court order ( § 166,

subd. (a)(4) )

. According to the preconviction probation report

S ovalbarro punched Claudia F., his former gi rlfr iend o f

five ye ars, and threatened her while holdi ng a knife. The report

also stated Sovalbarro had been convicted in June 2019 of

misdem eanor spousal/cohabitant battery and was serving

3 6 months of summary probation at the time of the charged

offense s

. On June 18, 202 1 , pursuant to a negotiated agreement,

Sova lbarro 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 stipula ted “ based on the

report, ” defens e cou nsel r espo nded, “ Yes, pursuant t o People v.

West

. ” With respect to the agreed

- upon sentence, the court asked

Sovalbarr o directly, “ Do you understand what the agreement is,

that you are going to rece ive execut ion of sentence suspended,

high term of fo ur years in sta te prison, wh ich means you will be

placed on probat ion. And if you violate any term or cond ition 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, bu t four years. Is that your understanding? ”

Sovalbarro answered, “ Yes. ” The court then asked, “ Is th ere any4

question about that at all? ” So valbarro answered, “ No

. ” Finally,

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

Mr. Farias? ” De fense counsel r e sponded, “ Ye s, Your H onor. ”

The court then im posed and stayed execution of the agreed

upper term sentence of four years for a ssault with a deadly

weapon
, placed Sovalbarro on four years of formal probation on

condition that he serve 360 d ays in county j ail (with credit for

time served of 360 days ), enter and rem ain in a 90

- day

resident i al drug treatment program

, make restitution to the

victim

, stay at least 100 y ards away from Claudia F.

, not

threa ten or harass her an d 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 m isd emeanor
violation of section 166, subdivision (a)(4), and dism issed all other

counts pu rsuant to the parties ’ plea negotiation s

.

2. T he P roba tion Vi ol ation and Execution of Sentenc e

At a progress hearing concerning Sovalbarro ’ s domestic

violence counseling on December 14, 2021, the prosecutor advise d

the cour t that she had received in formation that So valbarro sent

threatening t e x t m essages to C laudia F. and was in violation of

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

court summarily revoked probation

, set Janua ry 13 , 20 22 as the

date to sche dule a formal probation violation hearing an d

rem anded Sovalbarr o to custody

. At the setting hearing Sovalbarro ’ s counsel first argued

that neither he nor Sovalbarro knew when Sovalbarro entered his

p lea t hat

, as of J anuary 1, 202 2, a suspended sentence would be

illegal

, referrin g to section 1170, subdivision (b)(5), as amended

by S enate Bill 567 , which provi des in part

, “ A term of

impr isonment shall not be specified if imposition of sentence is5

sus pen ded. ” 2 T he court responded, “ But imp osition o f sentence

wasn ’ t sus pended. Exe c u tio n of sentence is su spended. ”

Coun sel then argued new section 1170, subdivision (b)(2)

, which specifies a court may impose a n upper term sentence only

when there are circu mstances in aggravation stip ulated to by the

defendant or found true b e y ond a reasonable doubt at trial

, should app l y t o Sovalbarro, w hose case was not yet final on

appeal . Counsel s tated Sovalbarro was willing to stipulate to

having had contact with Clau dia F.

, a violation of the t erms of

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

t erm sentence of t hree year s

. The court , after a cknowledging the new provisions of

section 1170, subdivision (b), stated a prior convicti on m ay be

considered as a factor in a ggravation without a stipulation or

submit t i ng the prior conviction to a jury and noted Sovalbarro

h ad a prior conv iction for dom estic violence and was on summary

probation at the time of the aggravated assault

. The court

stated, based on tha t prior conviction, “ the four

- year sentence

w o uld be appropriate. ”

So valbarro disputed he was on probation at t he time of the

offenses and objected to the four

- year sentence , but agreed to

admit the probation v iola tion

. The court found his admiss ion was

knowing and intelligent, found So v a l bar ro in violation of the

terms and conditions of probatio n, revoked probati on and ordered

executed the previously agreed

- upon four

- year sentence.

2 Actually, this provision was par t of sec ti on 11 70

, subdivisio n (b), when Sovalbarro entered his plea in June 2021
( see Stats. 2020, ch. 29, § 14 ), as it has been for dec ades ( s ee, e.g.,
Stats. 198 7 , ch. 14 23, § 2 )

.6 DISCUSSI ON

1

. Se nate Bill 567

In Cunningha m v. California (2007) 549 U.S. 270

, 293 the

U nit ed States Supreme Court held California ’ s determinate

sentencing law , which provided specifi ed crimes were to be

punished by one of three statutory terms of imprisonment (t he

l ower, middle or upper term), vi olate d a defendant ’ s

federal constitutional r i gh t to a jury trial under the Sixth and

Fourteenth Amendments to the extent it authorize d the t ri al

judge to f

ind facts (other than a prior conviction) by a

preponderance of t he e viden ce that subject ed a defend ant to the

pos sibility of an upper term sent e n ce. As the Court explained,

“Because circumstances in aggravation are found by th e judge,

not the jury, and n eed only be establi s h ed by a preponderance of

the evidence, not b eyon d a r easonable doubt, . . . the [determinate

sentencing law] violates Appre n d i [ v. New Jersey (200 0 ) 530 U.S.

466] ’s b r i g h t

- line rule: Except for a prior convicti on, ‘any fact

that incre a s es the penalty fo r a crime beyond the prescribed

statutory maxi m um must be submitted to a jury, and proved

beyond a rea s o nable doubt

. ’ ” ( Id. a t pp . 288

- 289.)

F ollowing the Supreme Court ’s decision in Cunningham

, the Legislature amended section 1170

, subdivision (b), effective

March 30, 2007 as urgency legislation, to elimi nate the statutory

presumpt ion for the mi ddle term and, instead, to gr a n t t he trial

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

( F ormer § 1170, su bd. (b) ; Stats

. 2007, ch. 3

. § 2 [ “ [w]hen a

judgment of imprisonment is to be im pos e d and the statute

specifies thre e possible ter ms, the choice of the appropr i a te term

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

Sandoval (2007) 41 Cal.4th 825, 8 45.) As revised , section 11707

permitted the sentencing court to impo se an y of the three terms,

el imi nated the requ irement of weighing the circu m s tan ces in

aggravation against those in mitigation before selecting the

upper term and required the cou rt only to state reasons for the

decision to permit appellate review for abus e of discretion. (See

Sandoval

, at pp. 843, 8 47.) The Legi slature explain e d th e intent

of the 2007 urgency legislation was “ to maintain stability in

California’s criminal justice system while the criminal justice and

sentencing structures in Californ ia s enten cing are being

reviewed

. ” The urgency le gislation ha d a January 1, 20 0 9 su nset

date, which was extended multiple times through January 1,

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

Sen ate Bill 567 was the Legislature ’ s more fundamental

response to t he S ixth and Fourt eenth Amendment is sues

addressed by the United States Supreme C our t in Cu nningham

v. California

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

Safety, Rep. o n S e n. Bill No. 567 (2021

- 2022 Reg. Sess.) April 13,

2021.) Among other changes to the d eterminate sentencing law

, section 1170, subdivision (b)(1), no w provi d e s, “ When a judgment

of imprisonment is to be im posed and the statute specifies three

possible t erms , the court shall, in its sound discret i on, order

imposition of a sentence n ot t o exc eed the middle term except as
otherwise p rovided in paragraph (2). ” S u b div ision (b)(2), in turn

provides, “ The court may impose a sentence exceeding the middle

term o nly when there are circumstances in aggravation of the

crime that justify the im posi tion of a term of imprisonment

e xceeding the m iddle term, and the facts und e r lyi ng th ose circumstances have been stipulated to by the defendant, or have

been found true bey ond a reasonabl e doubt at trial by the jury or

by the judge in a court trial.

. . . ” Sub division (b)(3) creates an8

exception to t h e limitation imposed by subd i v isi on (b)(2),

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

the defendant ’ s p rior conviction s in determining sentencin g based

on a certified record of convic tion with out submitting the prior

co nvictions to a jury. ”

Because Senate Bill 5 6 7 ’ s changes to section 1170,

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

u pper term of im prisonment, it is an ameliorative change in the

law ( see People v

. Fr ahs ( 2020) 9 Cal. 5th 618, 628 ) a nd, as such,

a pplies retroactively to nonfi n a l j udgments under the principles

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

63 Ca l.2d 740, 742

. (

People v. Lopez (2022) 78 Cal.App.5th 459,

46 5 [ “[t]he Peo ple p rope rly c oncede that Senate Bill No. 567 ’ s

amelior ative amendments to section 1 1 7 0, subdivision (b) apply

retroactively to all cases not yet final as of January 1, 2022 ” ;
Peopl e v. Flores (20 22) 73 Cal.App.5th 1032, 1039 [ “[t]h e People

correctly concede th e am ended version of section 1170,

s ubdivision (b) tha t became effective on Jan u a ry 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.5t h 67 1, 67 4 [ “ ‘ When the Legislature

a mends a statut e so as to lessen the punishm e n t[, ] it has

obviously expressly determined that its former penalty was too

severe and that a li ghter punishmen t is proper as punishment for

the commission of the prohibited ac t. It is an inevitable inference

th at the Legisla ture must have intended that t h e n ew statute

imposing the new l ighter penalty now deemed to be sufficient

should apply to ever y case to which it constitutionally could

apply. The amendatory act imposing th e li ghter punishment can

be applied constitutional ly to acts committed before i t s pa ssage9

provided the judgment co nvicting the defendant of the act is not

final ’ ”]; see also Pe ople v. Superio r Court (Lara) ( 2018) 4 Cal.5th

299, 307

. )

2. The Trial Court D id N ot Er r by O rdering Executi on of

the Previousl

y Suspended Upper Term S entenc e Agr eed
to by S ovalbarr o 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 y et f inal for purposes of applying am e l iorative le gislation if

the defendant, as h ere , could appeal an order revoking probation

, causing the state prison sentence to take effect. ( P eople v.

E s quivel

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

princ iple s sec tion 1170, subdivision (b), as amended b y Senate

Bill 5 6 7

, would appl y t o S ovalbarro ’ s case . But as the Supreme

Court cautioned in People v. Stamps (2020) 9 Cal.5th 68 5, 700,

“ The Es trada rule only answer s the question o f whether an

amended statu te s h ould be applied retroactively. It does not

answer the q uestion of how that s tat ute should be applied. ”

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

limitations o n t he exercise of sentencing discretion enacted by the

Legislature in Senate Bill 567 d o not affect the trial court ’ s
discretion to accept a plea agreement with a s tip ulated upper

term sentence. A negotiated plea is

, in essence, a contract

between the pr osec utor and the de fendant to which the court

agrees to be bound

. (

People v. Stamp s
, s u

pra
, 9 Cal.5th at p. 701;

Peop le v. Shelton (2006) 37 Cal.4th 759, 767 .) “ ‘ “ Wh en a guilty

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

such as t he di smissal of othe r counts or an agre ed maximum

punishment, both parties, includi ng t h e sta te, must abide by the

term s of the agreement. ” ’ ” ( People v. Segura (2 0 0 8) 44 Cal.4th10

921, 930

- 931

. ) The trial court may decide not to approve the

terms of a plea agre ement negotiate d by the parties if it does not

believe the agreed

- upon disposi tion is fa ir, but it cannot change

t hat bargain or agreement without the consent o f b oth parties.

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

procee d as to the plea oth er than as specified in the plea. ”

(§ 1192.5, subd. (b) ; see S tamp s , at p. 701 [ “[w] hile no bargai n or agreement can divest the court of the s e n ten cing discretion it

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

barg ain i s bou nd to impo se a sentence within the limits of that

bargain ”] .)

Thus, whe n se n tenc i ng Sovalbarro , the court w as not

exe rcising its discretion to select a l owe r, middle or upper term

and did not consider aggravating or mitigating factors ; and

s ection 1 170, subdivisio n (b)(2) ’ s limitations on the imposition of

an upper term sente nce a re no t 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 p lea 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 T he trial court corr e c tly pointed o ut it could consider a
prior conv iction a s an ag gravating factor without the defendant ’ s stipulation or submi tting the matter to a jury . However

, section 1170, subdivisi on (b)(3), requires th at d e t erminati on be

based “ on a certified record o f co nviction. ” No certified record of

Sovalbar ro ’ s dom es tic v iolence conviction was presented to the

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

2022 hearing at which the stay ed sen tence was or d ered exe cuted.

Altho u gh Sovalbarro did not o bje ct o n this basis in the trial court11

agree d t o be bound by i t and not to subsequently challenge the

existence of any f

act nece ssary to supp ort his conviction and

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

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

specified sente n c e
, appellate cou rt will not find error even though

the trial court acted in excess of jurisdic t i on in reaching that

figure, so long as the trial court did not lack fundamenta l

ju r isdic t i on ” ]; Cal. Rules of Co urt, rule 4.412(a) [ “ [i]t is an

adequate reaso n f

or a sentence o r other disposition that the

d efend a n t, personally and by counsel, has expressed agreement

tha t i t be imposed and the prose cuting at t o rne y has not

expressed a n ob j ectio n to it ” ].)

People v. Br ooks (2020) 58 Cal.App.5th 1099 ( Bro o ks )

suppo r t s t his view. In Brooks t he defendant agreed to a
stipulated sentence as part of a negotiated plea agreement.

( Id. at p. 1102.) After he was sentenced, the Legi slature enac ted

s ectio n 1170.91, which retroac tively required the trial court to

consider tr a u m a a defendant s uffered as a result of military

service as a factor in mitigation when imposing a sentence under

section 1170. (

Br ooks

, at pp. 1103

- 1104.) The t rial court d enie d

the defendant ’ s petition to recall his sentence pursuant

section 1170.91

, f

i n di ng it was not authorized to resentence him

because he had stipulated to a speci fi c term in his plea

agreement. (

Id. at pp. 1102

- 1103.) The cour t of appeal affirmed

,

(he ins isted he h ad no t be en on probation when he assaulted

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

, t he Attor ney General does not argue t he tr ial court

proper ly rel ied on the prior c onv iction to satisfy section 1170,

subdivision (b) ’ s n ew requ irements for imposing an upper term

sentence and that any pro cedural error was
, therefore, harmless

.12

c onc ludi n g, be cause the defendant had stipulate d to his sentence

in his plea agreeme n t

, t he trial cour t had not appl ied judicial

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

so on resentencing because that would unlawfully mod ify the

terms of h is pl ea agreement. ( Id. at pp. 1106

- 1107.) That is, o nce

the trial court a c c ep ted the plea agreement, it was required to

impose the sentence to which the par ties had agre ed in their plea

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

s ectio n 1170, exerc ises its discretion to choo se an upper, middle

or lower d e t e rm inate term ba sed 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 a n u pp er, middle an d lower term and may not

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

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

v. K ing ( 2020) 52 Cal.App.5th 783, 790

- 791 .)

We r ecognize, as Sovalbarro argues i n h is reply brie f

, 4 that

s ection 1170.91

, at issue in People v. Brooks

, supra
,

4 In his open ing brief Sovalbarro did not dir e ctl y address

whe ther Senate Bill 567 ’ s l imi tations o n the exercise of
sentencing discretion appl y t o the t rial court ’ s discretion to accept
a plea agreement with a sti pulated sentence. He argued only

that h is no contest pl ea , althoug h admitt ing t he eleme n ts of the

aggrav ated assault

, did not c o nst itute an admiss ion of any
aggravating circumstan ces ( cit ing Peo ple v. French (2008)

43 Cal.4 t h 36, 49 ) and the various facto rs identified by the trial
court at the January 13, 2022 hearing as supporting the
previ o usl y agreed

- upon upper term four

- year s e nte nce (for

ex ampl e, that he was on probation when he as sau lted Cl audia F.) did not satisfy the new requirements of section 1 17 0,

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

58 C a l. App.5th 1099

, mandated only th at the trial court consider

an additional mitigating facto r be f ore imp osing sentence

— adding

a n ew cons ideration to an already existing deter m i nat ion

— while

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

p rec lude the trial court from imposing the upper term unless it

finds circumstances in aggravati on

. But

, as dis cussed

, in

deciding wh ether to accept the partie s ’ p l e a a greemen t w i th a
stipulate d sentence, the trial court has no discretion to de t ermine

whether to impose the middle or upper term

— there is no triad

sentencing at all. T h e cour t either accepts the agree ment as negotiated or it does not. ( People v. Stamp s
, su

pra
, 9 Cal

. 5th at

p. 701; People v. Segura

, supra
, 44 Cal.4th at p. 931 ; Peop le 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 sen tenced

appella n t according to the terms of the plea agreement ”]

. ) A ny

r e quirements or limitati ons on the court ’ s exercis e of its

sentencing discretion, therefor e, a r e simpl y not applicable

. ( See

Pe ople v. Hester

, supra
, 22 Cal.4th at p. 295; c f. People v

. Fr enc h

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

wh o se plea agreement included a sentence range was entitled at

a sentencing hearing to lit igat e matter s relating to the trial

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

specif ied sent ence would be imposed ” ] .) 5

none was submitted t o a jury ; and hi s dome stic violence

co n v ict ion was not est ablished by a certified record.

5 I f , as in People v. French

, a defendant ’ s plea agreement
provide d for a se ntenc e range that permitted, b ut did not requir e
, imposit ion of an upper term, and t h e d efendant was therea fter

sentenced to the upper term, resentencing pursuant to14 3. Sovalbarro Is Not Entitled to a Stamps Remand

Sovalbarro ar gues, as an alternative to his contention his

agreed

- u pon senten ce must be reduced to the middle term of

three years absent an admission of aggravati ng fact ors
, th a t the

cause should be remanded and the plea agreemen t resc inded if

the prosecutor does not agree to the down ward adjustment . This

attempted analo gy t o the limited remand procedure authorized in

People v. Stamps

, supra
, 9 Cal.5th 685 is equa lly fla wed.

I n Stamps the defendant entered into a plea agreement for

a specified term that included a prior serious felony enhancement

pursuant to section 667 , su bdivision (a). While his appeal was pending, Sen ate Bill No. 1393 (Sta ts. 2018, ch. 1013, §§ 1, 2 ) went

i nto effect

, permitting the trial court to strike the serio us felony

enha ncement in furtherance of justice

, w h i c h i t w a s n o t

p r e v i o u s l y a u t h o r i z e d t o d o

. A fter rejec ti ng the defendant ’ s

a rgument he was entitled to have th e cause remanded for the

tr ial cour t to consider whether to strik e the enhancement while

othe rwise m aintainin g the plea agreement in t act

— in effect , the

relief So valbarro seeks with his request that his sentence be

reduced to the middle term

— the Supreme Cou rt held the

defendan t could ask the trial court whether it would approve a
new plea agreement with ou t the enhancement

. As the Court

explained, if the court said no, “ that ends the matt er and

defendant ’ s sentence stands. ” ( People v. Stamps

, supra
, 9 Cal.5th

at p. 707.)

section 11 70, s ubd ivisi o n ( b ), would be necessary in the absence

of a stipulation to t he facts supporting the upper term or a certified record of a prior conv iction . (Se e Pe o ple v. French

,

s upra
, 43 Cal.4th at pp. 48

- 49 .)15 Tha t is pr ecisely what happened at the setting hearing on

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

reconsider Sov a lbarro ’ s agreement to a four

- yea r
, up per

- term

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

Senate Bill 567

. The cou r t respo nded the sentence remained

appropriate

. Under the S t amps model, assuming it applies

, Sovalbarro ha d no unilateral right to r escind the a greement

. The

court ’ s decision not to reconsider the plea agreement end ed the

matter. 6

It may be useful on a go ing

- for ward basis for the trial court

, when taking a plea with a s tipu lated u pper term sentence

, to

have the defendant admit the aggravating f a cto rs nece s s a r y 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 Sovalb arro agreed to imposition of the

upper term of four years for aggravated assaul t ; and th e tr ial

court, in acce pting the parties ’ pl e a ag reement, was bound to

en force it according to its term s. Sov albarro has no right to

resentencing under Senate Bill 567.

6 In any event, Sovalbarro had already enj oyed the benefi ts of the plea agreement : He remained out of custody on prob ation

for the second half of 2021. By the ti me he violated the
conditions of probation a nd faced execution of the suspended term of the plea agreement, it w as far too late to seek resc is s ion.
( See People v. Hester

, supra , 22 Cal.4th at p. 295 [ “ defendant s who have received the benefit of their bargain should not be

allowed to trifle with th e co urts by a ttempting to better the
bargain through the appellate process ” ]; c f. Civ. Code, § 1691 [ to

eff ect a rescission a party must, among other th ings, “[r ]estore to the other party every thing of value which he has received ”].)16 DISPOSITION

The judgment is affirmed.

P ER LUSS, P. J.

We concur:

SEG AL, J.

FE UE R , J.