Filed 3/14/23 P. v. Tovar CA5

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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS TOVAR,

Defendant and Appellant.

F082662, F082663

(Super. Ct. Nos. CR-18-006499,

CR-18-001361)

OPINION

THE COURT*

APPEAL from judgments of the Superior Court of Stanislaus County. Shawn D. 

Bessey, Judge.

Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and 

R. Todd Marshal, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Levy, J. and Peña, J.
2.

Defendant Jesus Tovar pled no contest to three offenses and admitted a firearm 

enhancement and a prior “strike” conviction within the meaning of the “Three Strikes” 

law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)),

1 pursuant to a negotiated 

plea agreement that globally resolved five criminal cases. The plea agreement included a 

stipulated upper term on one of the counts of conviction. On appeal, defendant contends 

that his sentence must be vacated and his case remanded for resentencing in light of 

Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to 

section 1170, subdivision (b). The People disagree. We affirm.

PROCEDURAL SUMMARY

On July 16, 2019, the Stanislaus County District Attorney filed a “unitary” 

information in Stanislaus Superior Court case Nos. CR-18-006499 and 4005615, 

charging defendant with evading a police officer (Veh. Code, § 2800.2, subd. (a); 

count 1), two counts of unlawfully taking and driving of a vehicle (Veh. Code,2 § 10851, 

subd. (a)(1); counts 2 & 4), and two counts of receiving a stolen vehicle (§ 496d, 

subd. (a); counts 3 & 5). As to counts 3 and 5, the information further alleged that the 

value of the vehicles exceeded $950. As to all counts, the information further alleged 

that defendant had suffered a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, 

subds. (a)–(d)) which also qualified as a serious felony conviction (§ 667, subd. (a)(1)), 

had served two prior prison terms (§ 667.5, former subd. (b)), and had been released on 

bail or his own recognizance at the time he committed the charged offenses (§ 12022.1).

On July 23, 2019, the Stanislaus County District Attorney filed an information in 

Stanislaus Superior Court case No. CR-18-001361, charging defendant with two counts 

of robbery (§ 211; counts 1 & 4), three counts of possession of a firearm by a felon 

1 All further undesignated statutory references are to the Penal Code.

2 The information erroneously alleged the offense as a violation of the Penal Code 

rather than the Vehicle Code.
3.

(§ 29800, subd. (a)(1); counts 2, 5, & 10), assault with a firearm (§ 245, subd. (a)(2); 

count 3), unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a); 

count 6), receiving a stolen vehicle (§ 496d, subd. (a); count 7), misdemeanor resisting a 

peace officer (§ 148, subd. (a)(1); counts 8 & 13), misdemeanor possession of burglary 

tools (§ 466; count 9), possession of ammunition by a felon (§ 30305, subd. (a)(1); 

count 11), and misdemeanor possession of methamphetamine (Health & Saf. Code, 

§ 11377, subd. (a); count 12). As to count 1, the information further alleged that 

defendant personally used a firearm in the commission of the offense (§ 12022.53, 

subd. (b)). As to count 3, the information further alleged that defendant personally used a 

firearm in the commission of the offense (§ 12022.5, subd. (a)). As to count 4, the 

information alleged that defendant personally discharged a firearm causing great bodily 

injury (§ 12022.53, subd. (d)). As to counts 6 and 7, the information alleged the value of 

the vehicle exceeded $950. As to counts 1 through 7, 10, and 11, the information further 

alleged that defendant had suffered a prior strike conviction (§§ 667, subds. (b)–(i), 

1170.12, subds. (a)–(d)), had served two prior prison terms (§ 667.5, former subd. (b)), 

and had been released on bail or his own recognizance in two other criminal matters at 

the time he committed the charged offenses (§ 12022.1). As to counts 1, 3, and 4, the 

information further alleged that defendant had suffered a prior serious felony conviction 

(§ 667, subd. (a)(1)).

On December 17, 2019, pursuant to a negotiated plea agreement, defendant pled 

no contest to counts 1 and 3 of case No. CR-18-001361 and admitted having previously 

suffered a strike conviction; and pled no contest to count 4 of the unitary information in 

case Nos. CR-18-006499 and 4005615, admitted that the value of the property exceeded 

$950, and admitted having previously suffered a strike conviction.3 The plea agreement 

3 The court and the parties agreed that case No. 4005615 was “consolidated into” 

case No. CR-18-006499.
4.

included a stipulated 16-year four-month sentence as follows: on count 1 of case 

No. CR-18-001361, 10 years (the upper term of five years, doubled due to the prior strike 

conviction); on count 3 of case No. CR-18-001361, two years (one-third the middle term 

of three years (the lower term), doubled due to the prior strike conviction), plus a 

three-year firearm enhancement, consecutive to count 1; and on count 4 of case 

Nos. CR-18-006499, 16 months (one-third the middle term of two years, doubled due to 

the prior strike conviction), consecutive to count 3 of case No. CR-18-001361. In 

exchange for his pleas, all remaining counts and allegations were to be dismissed in case 

Nos. CR-18-001361, CR-18-006499, 405538, and CR-18-004331. Case 

Nos. CR-18-001361 and 405538 were dismissed with Harvey4 waivers; the other cases 

were dismissed without Harvey waivers.

On the same date, the trial court imposed the stipulated sentence and the counts 

and allegations to which defendant did not plead no contest and did not admit were 

dismissed as agreed.

On July 27, 2020, the trial court received an untimely notice of appeal, dated 

July 21, 2020.

On October 9, 2020, the trial court received correspondence from the Department 

of Corrections and Rehabilitation, notifying it of an error in defendant’s sentence.

On February 16, 2021, with agreement of the parties, the trial court resentenced 

defendant to correct the sentencing error. The only change from the sentence originally 

imposed was to the firearm enhancement on count 3 of case No. CR-18-001361—the 

sentence on that enhancement was modified to one year four months (one-third the 

middle term of four years) rather than the originally imposed three years (the lower term). 

The aggregate term of imprisonment was therefore reduced to 14 years eight months.

4 People v. Harvey (1979) 25 Cal.3d 754.
5.

On April 1, 2021, defendant filed a notice of appeal in case Nos. CR-18-001361 

and CR-18-006499.

DISCUSSION5

I. Senate Bill 567

Defendant contends that we must vacate his sentence and remand the matters

because he did not admit and a jury did not find true any circumstances in aggravation,

nor did the trial court find that circumstances in aggravation of the offense justified a 

sentence exceeding the middle term as required by section 1170, subdivision (b) as 

modified by Senate Bill 567. The People respond that the modifications to section 1170 

brought about by Senate Bill 567 are inapplicable in this case because the court had no 

discretion to impose a sentence other than the stipulated sentence set out in the negotiated 

plea agreement. We agree with the People.

A. Additional Background

On December 17, 2019, the date of defendant’s original sentencing, the trial court 

concluded that probation would “be denied based on ... defendant’s criminal history, the 

nature of these counts, and the agreed-upon resolution.” It then sentenced defendant to 

the upper term of five years on count 1 of case No. CR-18-001361. The trial court did 

not expressly articulate any circumstances in aggravation or circumstances in mitigation 

in imposing defendant’s sentence.6

The trial court did not discuss aggravating circumstances on February 16, 2021, 

when it resentenced defendant to correct the sentencing error.

5 Defendant’s argument on appeal relates only to sentencing issues. For that reason, 

we omit any summary of the facts relating to defendant’s offenses of conviction.

6 The probation officer prepared no formal presentence report because defendant 

requested to be sentenced on the same date that he entered his no contest pleas.
6.

B. Retroactivity

As a threshold matter, Senate Bill 567 is retroactive to cases not yet final on 

appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People v. Flores (2022) 73 

Cal.App.5th 1032, 1038–1039 [remanding for resentencing under another ameliorative 

amendment to section 1170 by Senate Bill 567]), and defendant’s sentence is not yet final 

on appeal. The parties agree that defendant’s sentence is not yet final on appeal.

C. Analysis

Effective January 1, 2022, Senate Bill 567 amended section 1170, 

subdivision (b)(2), such that it now provides, “[t]he 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).)7 On the other hand, section 1192.5, subdivision (b), 

provides in relevant part, that when a “plea is accepted by the prosecuting attorney in 

open court and is approved by the court, ... the court may not proceed as to the plea other 

than as specified in the plea.” “ ‘ “ ‘A plea agreement is, in essence, a contract between 

the defendant and the prosecutor to which the court consents to be bound.’ ” ’ ” (Stamps

(2020) 9 Cal.5th 685, 701.) While the plea bargain does not divest the trial 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.” ’ ” (Ibid.; see § 1192.5, 

subdivision (b) [when a “plea is accepted by the prosecuting attorney in open court and is 

approved by the court, ... the court may not proceed as to the plea other than as specified 

in the plea”].) Thus, when the defendant and the prosecutor agree that a specified 

7 A trial court is permitted to rely upon a certified record of conviction to determine 

prior criminality for purposes of sentencing without submitting the prior conviction to a 

jury. (§ 1170, subd. (b)(3).) 
7.

sentence will be imposed, the court does not exercise discretion within a range of 

otherwise permissible sentences, but rather imposes the agreed-upon sentence. (See 

People v. French (2008) 43 Cal.4th 36, 49.)

The People contend that section 1170, subdivision (b)(2), applies only when the 

trial court’s discretion is not restrained by a negotiated plea agreement pursuant to 

section 1192.5. They reason that when a plea agreement stipulates that the upper term be 

imposed, the court exercises no discretion and may not make the finding required by 

section 1170, subdivision (b)(2). For that proposition, the People rely on People v. 

Brooks (2020) 58 Cal.App.5th 1099. In Brooks, the defendant entered a plea agreement 

that stipulated a 13-year sentence. (Id. at p. 1102.) Brooks petitioned the lower court to 

be resentenced, pursuant to recently enacted section 1170.91, subdivisions (a) and (b)(1), 

which, collectively, required the trial court to consider specific mental health problems as 

circumstances in mitigation when sentencing military veterans and permitted military 

veterans with such problems to petition for a recall of sentence. (Brooks, at pp. 1102–

1103; § 1170.91, subds. (a) & (b)(1); see § 1170.91, subd. (a) [“court shall consider the 

[identified] circumstance as a factor in mitigation when imposing” a term under 

subdivision (b) of Section 1170”].) The trial court concluded that it had no power to 

resentence defendant because his plea agreement provided for a stipulated term. (Brooks, 

at p. 1103.) The appellate court affirmed, concluding that section 1170.91 does not 

“extend[] to sentences based on final convictions by plea agreement specifying a 

stipulated imprisonment term.” (Brooks, at p. 1106.) The court explained that there was 

no “triad sentencing discretion to exercise” because the plea agreement specified the 

sentence to be imposed and, pursuant to section 1192.5, no other sentence could properly 

be imposed. (Brooks, at p. 1107.) 

This court recently considered the same issue presented in this case in People v. 

Sallee (Feb. 15, 2023, F083728) ___ Cal.App.5th ___ [2023 Cal.App.LEXIS 102]. We 

explained that when a trial court “impose[s] a stipulated sentence pursuant to a negotiated 
8.

plea agreement ... the court’s discretion [is] limited to approving or rejecting the bargain. 

The court [does] not exercise discretion to select between the lower, middle, or upper 

term based on any aggravating or mitigating circumstances.” (Sallee, [p. 10].) “Thus, 

section 1170, subdivision (b), which governs the court’s exercise of discretion with 

regard to a sentencing triad, does not apply.” (Sallee, [pp. 10–11].) We further explained 

that Brooks and People v. King (2020) 52 Cal.App.5th 783, 791—which also addressed 

the same section 1170.91 issue as Brooks—both support our conclusion. (Sallee, 

[pp. 11–13].) Here, we reach the same conclusion for the same reasons.

For the same reasons articulated in Sallee, we conclude in this case the trial court 

did not exercise triad discretion when it imposed the stipulated sentence set out in the 

negotiated plea agreement and therefore the amendments to section 1170 brought about 

by Senate Bill 567 are not applicable in this context. (See People v. Sallee, supra, ___ 

Cal.App.5th ___ [2023 Cal.App.LEXIS 102, p. 15].)

DISPOSITION

The judgment is affirmed.