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Upper Term Plea Deal Remanded - SB 567

People v. Fox Docket: A165462 (First Appellate District), Opinion Date: April 20, 2023. In 2015, after his co-defendant stole a camera from tourists, Fox shot at the tourists as the two fled. Fox was charged with eight felony counts, exposing him to a life sentence. He pleaded guilty to robbery, admitted to personally using a firearm during the offense, and agreed to a 15-year prison sentence--10 years for the firearm enhancement and the aggravated term of five years for the robbery. While his appeal was pending, Senate Bill 620 took effect, granting trial courts new discretion under Penal Code 1385 to strike firearm enhancements. The court of appeal rejected Fox’s request for a remand to ask the trial court to strike his firearm enhancement while he retained the other benefits of his plea. In 2020, the California Supreme Court remanded for reconsideration in light of “Stamps.” On remand, Fox unsuccessfully moved for the trial court to exercise its discretion to strike the firearm enhancement. The court of appeal held that Fox is entitled to a remand for resentencing under Senate Bill 567, which amended Penal Code 1170(b)) to alter a trial court’s discretion to choose the lower, middle, or upper term for a crime with a sentencing triad, such as the robbery charge to which Fox pleaded guilty. Based on the logic of Stamps, a defendant who agreed to serve the upper term under a plea agreement is nonetheless entitled to a remand to ensure section 1170(b)’s requirements are met.

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