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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)).
A fter the People amended count 2 to charge simple
k idnapping (§ 207 , subd. (a)), appella nt 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 compris ed 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 offense s justified a sentence exceeding the middle term. He
further contends the court erroneously denied two of his four
Marsd en 2 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 k now 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 gra bbed the victim,
forced her out of her workplace

, dragged her in to his car, struck
her knee with a hammer and bit her hand and forehead. As appellant d rove , 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 tr ial court denied both motions. Late r , appellant made a Faretta 3 request to represent himself. The court granted th at request. Appellant surrendered his pro per status in 2019. H is 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
whi ch 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 thin gs , 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,

5 00.) 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 ple a 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.
“‘Alt hough 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
bet ween 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 jurisdiction5

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

t riad 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 an d 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 cou rt 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 requ irements of amended section 1170, subdivision (b). The trial court indicated it was sentencing appellant to the upper term s 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 , the6

court i nformed 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, “Ok ay, 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 M

arsden motions to replace attorney Sepe, his second appointed counsel. As the People point out, appellant
waived this contention by pleading no contes t. 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].)
A ppellant 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 represen ts ‘“‘ 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 very7

pronounced ‘ break in the chain of events ’ involving the attorney

client relation ship

. . . . 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

., C oncurring:
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 stipula ted 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 throug h 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 sec tion 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. Lo m eli

, Judge Superior Court County of Los Angeles

______________________________

John F. Schuck

, und er 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

, Supervisin g Deputy Attorney General, and Rene Judkiewicz

, Deputy Attorney General, for Plaintiff and Respondent.