Filed 10/26/22 P. v. Caro CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

 Plaintiff and Respondent, 

v.

JOSE CARO, 

 Defendant and Appellant.

2d Crim. No. B315233

(Super. Ct. No. BA450645)

(Los Angeles County)

In 2016, appellant Jose Caro was charged with attempted 

murder (Pen. Code, §§ 664/187, subd. (a); count 1),1 kidnapping to 

commit rape (§ 209, subd. (b)(1); count 2), assault with intent to 

commit a sex offense (§ 220, subd. (a)(1); count 3), assault with 

deadly weapons (§ 245, subd. (a)(1); counts 4 & 5), criminal 

threats (§ 422, subd. (a); count 6), recklessly fleeing a police car 

(Veh. Code, § 2800.2; count 7) and stalking (§ 646.9, subd. (a); 

1 All statutory references are to the Penal Code unless 

otherwise stated. 
2

count 8). As to counts 1 through 3, appellant was alleged to have 

used deadly weapons (§ 12022, subd. (b)(1)). 

After the People amended count 2 to charge simple 

kidnapping (§ 207, subd. (a)), appellant pled no contest to counts 

1 through 6 and count 8. He also admitted use of a deadly 

weapon as to counts 1 and 2. 

Pursuant to the parties’ plea agreement, the trial court

sentenced appellant to 22 years in prison. The stipulated 

sentence was comprised of the following: (1) as to count 1, the 

upper term of nine years, plus one year for the deadly weapon use

enhancement; (2) as to count 2, one year and eight months, plus

one year for the deadly weapon use enhancement; (3) as to count

3, the upper term of six years; (4) as to counts 4 and 5, one year

each; and (5) as to counts 6 and 8, eight months each. Per the

plea bargain, the trial court dismissed count 7 and the count 3 

enhancement. 

Appellant contends recently enacted Senate Bill No. 567

(S.B. No. 567) requires a remand because he did not admit, and 

the trial court did not find, that circumstances in aggravation of 

the offenses justified a sentence exceeding the middle term. He 

further contends the court erroneously denied two of his four 

Marsden2 motions. We reject both contentions and affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

For several weeks, appellant repeatedly visited the victim’s 

workplace. To discourage appellant’s attentions, the victim said 

she was married. Appellant wanted to know who the victim’s 

husband was so that he could hurt him. 

2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3

On the date of the offense, appellant grabbed the victim, 

forced her out of her workplace, dragged her into his car, struck

her knee with a hammer and bit her hand and forehead. As

appellant drove, he threatened to rape and kill the victim. When 

he stopped, he attacked the victim, pulled her shirt down, forcibly 

fondled her and attempted to have sex with her. 

In 2017, appellant filed two Marsden motions against his

appointed counsel. The trial court denied both motions. Later, 

appellant made a Faretta3 request to represent himself. The 

court granted that request. 

Appellant surrendered his pro per status in 2019. His 

standby counsel, Louis Sepe, was appointed to represent him. 

Two years later, appellant filed two more Marsden motions and 

another Faretta motion. All three motions were denied. 

DISCUSSION

S.B. No. 567

At the time appellant was sentenced, section 1170, 

subdivision (b), gave the trial courts broad discretion to decide 

which of the three terms specified for an offense would best serve 

the interests of justice. (See § 1170, subd. (b), as amended by 

Stats. 2020, ch. 29, § 14.) Effective January 1, 2022, S.B. No. 567 

amended section 1170, subdivision (b) to, among other things,

require imposing the middle term of imprisonment as the 

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

§ 1.3.) Under the amended statute, “[w]hen a judgment of 

imprisonment is to be imposed and the statute specifies three 

possible terms, the court shall, in its sound discretion, order 

3 Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 

562].

 
4

imposition of a sentence not to exceed the middle term, except as 

otherwise provided in paragraph (2).” (§ 1170, subd. (b)(1).) “A 

trial court may impose an upper term sentence only where there 

are aggravating circumstances in the crime and the defendant 

has either stipulated to the facts underlying those circumstances 

or they have been found true beyond a reasonable doubt. (§ 1170, 

subd. (b)(1)-(2).)” (People v. Flores (2022) 75 Cal.App.5th 495, 

500.)

The parties agree that S.B. No. 567’s amendments apply 

retroactively as “an ameliorative change in the law applicable to 

all nonfinal convictions on appeal. (People v. Superior Court 

(Lara) (2018) 4 Cal.5th 299, 308.)” (People v. Flores (2022) 73 

Cal.App.5th 1032, 1039.) They disagree, however, as to whether 

appellant is entitled to any sentencing relief. 

The People assert that the stipulated sentence is 

dispositive of appellant’s claim for relief under S.B. No. 567. We 

agree. Because the plea agreement included a stipulated 

sentence, the trial court did not exercise any discretion in 

sentencing and could not have done so. Thus, there is no 

“sentencing choice” to be reconsidered under the new standards 

governing sentencing discretion.

“‘Although a plea agreement does not divest the court of its 

inherent sentencing discretion, “a judge who has accepted a plea 

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

bargain. [Citation.] ‘A plea agreement is, in essence, a contract 

between the defendant and the prosecutor to which the court 

consents to be bound.’ [Citation.] Should the court consider the 

plea bargain to be unacceptable, its remedy is to reject it, not to 

violate it, directly or indirectly. [Citation.] Once the court has 

accepted the terms of the negotiated plea, ‘[it] lacks jurisdiction 
5

to alter the terms of a plea bargain so that it becomes more 

favorable to a defendant unless, of course, the parties agree.’ 

[Citation.]”’” (People v. Blount (2009) 175 Cal.App.4th 992, 997, 

quoting People v. Segura (2008) 44 Cal.4th 921, 931.) 

This case is analogous to those involving section 1170.91, 

which mandates consideration of trauma resulting from military 

service as a mitigating factor when a court exercises determinate 

triad sentencing discretion. (People v. Pixley (2022) 75 

Cal.App.5th 1002, 1005; People v. Brooks (2020) 58 Cal.App.5th 

1099, 1107-1109; People v. King (2020) 52 Cal.App.5th 783, 790-

794.) After section 1170.91 was amended to add a retroactivity 

clause and a procedure for resentencing certain individuals, cases 

arose in which the petitioners seeking resentencing had 

originally been sentenced pursuant to plea agreements with 

stipulated sentences. Courts have denied section 1170.91 relief 

on the basis that the trial court, having approved the plea 

agreement, cannot impose a sentence contrary to the stipulated 

sentence. (See King, at p. 791 [“[W]hen 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”]; accord Brooks, at p. 1109.) 

Appellant has failed to demonstrate that his stipulated 

sentence is subject to the requirements of amended section 1170, 

subdivision (b). The trial court indicated it was sentencing 

appellant to the upper terms on two counts based solely on the 

parties’ negotiated plea agreement. It did not state that it relied 

upon any aggravating factors when sentencing appellant. 

To the contrary, appellant and the district attorney were 

discussing a plea “deal” on the eve of the scheduled jury trial, the 
6

court informed appellant that “once the jury walks into my 

courtroom, [there will be] no more deal.” It further advised that 

“[i]f the jury comes back guilty on everything, it’s not going to be 

anything less than 30. It’s going to be life, period. But [the 

district attorney is] willing to go less than life [i.e., 22 years].” 

Appellant responded, “Okay, I’ll take it.” Under these 

circumstances, appellant is not entitled to sentencing relief under 

S.B. No. 567. (See King, supra, 52 Cal.App.5th at p. 791.) 

Marsden Rulings

Appellant contends the trial court abused its discretion by 

denying his two Marsden motions to replace attorney Sepe, his 

second appointed counsel. As the People point out, appellant 

waived this contention by pleading no contest. 

People v. Lobaugh (1987) 188 Cal.App.3d 780 (Lobaugh) 

held that after the entry of a plea of guilty or no contest, a claim 

of Marsden error is waived, except where a defendant asserts 

that the plea was not informed and voluntary or was the product 

of inappropriate advice from counsel. (Id. at p. 786; accord People 

v. Lovings (2004) 118 Cal.App.4th 1305, 1311-1312 (Lovings) 

[defendant’s Marsden claim was waived by no contest plea, even 

though he had obtained certificate of probable cause].)

Appellant acknowledges in his reply brief that a no contest 

plea generally waives any pre-plea Marsden claims. He argues 

that because appellant and Sepe apparently disagreed regarding 

the need for discovery of additional evidence, the plea was the 

product of inappropriate advice from counsel. (See Lobaugh,

supra, 188 Cal.App.3d at p. 786.) 

“A guilty plea represents ‘“‘a break in the chain of events’”’

in a criminal case that may preclude claims as to pre-plea rights 

[citation], and appellant's no contest plea [in this case] was a very 
7

pronounced ‘break in the chain of events’ involving the attorneyclient relationship . . . . The animosity and poor communications 

previously suggested or alleged were not in evidence at the plea 

hearing,” where appellant’s chief concern was obtaining the 

district attorney’s agreement to a non-life sentence. (Lovings,

supra, 118 Cal.App.4th at p. 1312.) Appellant achieved that goal 

and has failed to demonstrate a basis for reversal. 

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED.

PERREN, J.*

We concur:

GILBERT, P.J.

BALTODANO, J. 

* Retired Associate Justice of the Court of Appeal, Second 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
BALTODANO, J., Concurring:

I concur. At least one division of the Court of Appeal has 

concluded that Senate Bill No. 567 (2021-2022 Reg. Sess.) 

(Senate Bill 567) does not require the trial court find any 

aggravating facts to impose an upper term pursuant to a 

stipulated sentence. (People v. Mitchell (Oct. 3, 2022, A163476) 

__ Cal.App.5th __ [2022 WL 4696831 at p. *4].) Caro and the 

prosecutor agreed to a stipulated sentence that included high 

terms for two counts. But because many criminal cases are 

resolved through a stipulated sentence imposed pursuant to a 

plea bargain (see People v. West (1970) 3 Cal.3d 595, 604-605), I 

question whether a stipulated sentence should absolve the trial 

court in every case from complying with the proof now required 

by Penal Code section 1170, subdivision (b)(2). Scrutinizing these 

sentences would be consistent with the legislative intent of 

Senate Bill 567 to ensure that “the harshest sentences receive the 

greatest scrutiny and justification before they are meted out.” 

(Assem. Com. on Public Safety, Rep. on Sen. Bill No. 567 (2021–

2022 Reg. Sess.) as amended May 20, 2021, p. 3.)

NOT TO BE PUBLISHED.

BALTODANO, J.
9

George G. Lomeli, Judge

Superior Court County of Los Angeles

______________________________

John F. Schuck, 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 

Attorney General, and Rene Judkiewicz, Deputy Attorney

General, for Plaintiff and Respondent.