Filed 12/21/23 P. v. Weldon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DENNIS ANTHONY 

WELDON,

 Defendant and Appellant.

2d Crim. No. B321956

(Super. Ct. No. 21CR00636)

(Santa Barbara County)

Dennis Anthony Weldon pleaded no contest to resisting 

arrest (Pen. Code,1 § 69) and attempted criminal threats (§§ 422, 

664). Pursuant to a negotiated dispostion, the trial court imposed 

a stipulated sentence of the upper term of three years for 

resisting arrest and four months for attempted criminal threats. 

Appellant was released on probation. This was a very lenient 

disposition. He was facing a mandatory prison sentence. And it

1 Further unspecified statutory references are to the Penal 

Code.
2

seems obvious that the trial court wanted a “sword of Damocles” 

hanging over appellant’s head to “catch his attention.” As we 

explain, this did not work.

Appellant contends his sentence must be vacated and

remanded for a new hearing because Senate Bill No. 567, which 

amended section 1170, applies to his case. We disagree.

FACTS AND PROCEDURAL HISTORY

Appellant was arrested for disturbing the peace at a 

veteran’s clinic. During the arrest, he refused to walk to the 

patrol car and threatened to kill not only the arresting sheriff’s 

deputy, but his family as well. During a search, deputies found a 

knife in appellant’s jacket pocket. 

As well as the substantive offenses, it was alleged that 

appellant had two prior strike convictions (§667, subds. (d)(1) & 

(e)(1)). It also alleged that he was ineligible for probation 

pursuant to section 1203, subdivision (e)(4) and that he had been 

convicted of a serious felony pursuant to section 1170, subdivision

(h)(3). 

Pursuant to a negotiated plea agreement, the trial court 

imposed the upper term of three years pursuant to the agreement 

of the People and appellant. 

One of the terms of probation was that appellant abstain 

from alcohol. But two months later, sheriff’s deputies responded 

to a domestic dispute involving appellant. The deputies noticed

appellant’s speech was slurred and his eyes were glassy. They 

arrested appellant and administered a preliminary alcohol 

screening test. Appellant’s blood alcohol content was 0.043.

Following a hearing, the trial court found appellamt

violated probation. It imposed the previously suspended term of 

three years four months in state prison. The trial court noted 
3

that defense counsel “can take a look at the question of whether 

[the] upper term is appropriate given the circumstances, but it 

was the selected sentence at the time [appellant was] put on 

probation, and the sentence can always be recalled if the law is 

clear and the circumstances are clear, but at this point I’m going 

to follow through with the previously suspended sentence, three 

years and four months.”2

DISCUSSION

Senate Bill 567 amended section 1170 such that the middle 

term is now the presumptive term of imprisonment. Pursuant to 

this newly amended law, the trial court “shall, in its sound 

discretion, order imposition of a sentence not to exceed the 

middle term” unless 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)(1), (2).) 

Here, by reason of the stipulation, appellant consented to, 

i.e., agreed to, the upper term. Phrased otherwise, appellant 

agreed that there were “circumstances in aggravation.” He 

certainly did not object thereto because he was a candidate for 

prison. He should be estopped to now claim refuge under the 

Senate Bill 567 umbrella. In the presenting situation, the trial 

court has no discretion to impose any term other than what was 

agreed to. Were we to agree with appellant, we would have to 

2 This statement is enigmatic. The trial court could not 

alter the terms of a previously imposed sentence with execution 

of the sentence suspended. (People v. Howard (1997) 16 Cal.4th

1081, 1087.)
4

erase appellant’s signature from the written negotiated 

disposition and his oral agreement in the reporter’s transcript. 

This is referred to in the case law as the defendant not being 

allowed to “trifle” with the court. (E.g., People v. Hester (2000) 22 

Cal.4th 290, 295.)

Nevertheless, appellant contends we must vacate his 

sentence and remand the matter because he did not stipulate to 

the facts underlying the aggravated circumstances nor were they 

proven beyond a reasonable doubt as required by amended 

section 1170, subdivision (b). The Attorney General argues

Senate Bill 567 applies retroactively (In re Estrada (1965) 63 

Cal.2d 740, 745), but contends Senate Bill 567 is inapplicable 

because the trial court had no discretion to impose a sentence 

other than the stipulated sentence. 

Currently the Courts of Appeal are split on whether a 

defendant, like appellant, who received an upper term sentence 

pursuant to a plea agreement is entitled to remand because of 

Senate Bill 567. This issue is pending before our Supreme Court. 

(People v. Todd (2023) 88 Cal.App.5th 373, 381-382 [defendant

entitled to remand], review granted Apr. 26, 2023, S279154;

People v. Fox (2023) 90 Cal.App.5th 826, 835 [same]; People v.

Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059 [defendant not

entitled to remand], review granted Dec. 14, 2022, S277314

(Mitchell); People v. Sallee (2023) 88 Cal.App.5th 330, 340-341

[same], review granted Apr. 26, 2023, S278690 (Sallee).)

We have considered these cases and the alternate

approaches. We disagree with Todd and Fox and conclude that

there is no need for remand. Appellant agreed to the upper term

and given his dismal criminal history, this was a substantial
5

concession. To further lessen his sentence now seems a bounty in

excess of which he is entitled. 

In People v. Mitchell, supra, the Court of Appeal observed 

that the language of amended section 1170, subdivision (b)(1)

states that the trial court “ ‘shall, in its sound discretion, order 

imposition of a sentence not to exceed the middle term.’ ” 

(Mitchell, at p. 1058.) The Mitchell court reasoned that the plain 

language thus “indicates that the statute was not intended to 

apply to sentences imposed pursuant to a stipulated plea 

agreement,” in which the trial court lacked discretion to select 

the sentence and was limited to either accepting or rejecting the 

plea agreement. (Ibid.; see also Sallee, supra, 88 Cal.App.5th at 

pp. 338-340 [“the amendments to section 1170 . . . are 

inapplicable under the plain language of the statute”].) The rule 

and rational of People v. Mitchell, supra, makes common sense 

and actually comports with the practical considerations which 

are at play in any negotiated disposition.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

I concur:

GILBERT, P. J.
1

BALTODANO, J., Dissenting:

I respectfully dissent. In my view, Senate Bill No. 567 

(2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 

567) applies to Weldon’s stipulated sentence. This issue is 

pending before our Supreme Court and the Courts of Appeal are 

split on this issue. (People v. Todd (2023) 88 Cal.App.5th 373, 

381-382 [defendant entitled to remand], review granted Apr. 26, 

2023, S279154; People v. Fox (2023) 90 Cal.App.5th 826, 835 

[same]; People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059 

[defendant not entitled to remand], review granted Dec. 14, 2022, 

S277314; People v. Sallee (2023) 88 Cal.App.5th 330, 340-341 

[same], review granted Apr. 26, 2023, S278690.) The importance 

of this issue cannot be understated. A substantial number of 

criminal cases are resolved through plea-bargained sentences

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

Todd and Fox and conclude this case should be remanded. 

“[T]he question of how an ameliorative statute applies to 

plea-bargained sentences is one of legislative intent.” (People v. 

Carter (Dec. 8, 2023, D082219) __ Cal.App.5th __ [2023 WL 

8518903 at p. *9].) Scrutinizing plea-bargained upper term 

sentences is consistent with Senate Bill 567’s legislative intent 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.) The need for increased judicial 

oversight of plea-bargained sentences is particularly important 

here. Although the probation department recommended the 

middle term, the court imposed the upper term without 

indicating why it was doing so. Plea-bargained sentences should 

not relegate trial judges to the status of potted plants. 
2

I disagree with the Attorney General that Senate Bill 567 

is inapplicable because the trial court had no discretion to impose 

a sentence other than the stipulated sentence. Judges are 

required, “in their sound discretion,” to impose a sentence not to 

exceed the middle term unless the sentence complies with Penal 

Code section 1170, subdivision (b)(2). (Cal. Rules of Court,1 rule 

4.420.) And when imposing a prison sentence, a trial judge must 

review the probation department’s presentence investigation 

report and consider circumstances in aggravation. (Rules 

4.411.5, 4.421.) That report must include an “evaluation of 

factors relating to disposition” and “reasoned discussion of 

aggravating and mitigating factors affecting the sentence length.” 

(Rule 4.411.5(a)(9)(B).) A stipulated sentence is not a factor in 

aggravation. I would vacate Weldon’s sentence and remand for 

resentencing consistent with the current version of Penal Code

section 1170, subdivision (b). 

NOT TO BE PUBLISHED.

BALTODANO, J. 

1 Further unspecified references to rules are to the 

California Rules of Court. 
Brian E. Hill, Judge

Superior Court County of Santa Barbara

______________________________

Christina J. Alvarez, 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, Assistant 

Attorney General, Steven D. Matthews, J. Michael Lehmann and 

Lindsay Boyd, Deputy Attorneys General, for Plaintiff and 

Respondent.