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"Upper Term" Plea Remanded for Resentencing

People v. Todd Docket: H049129 (Sixth Appellate District), Opinion Date: February 15, 2023. Todd pleaded no contest to three counts of buying or receiving stolen property in exchange for dismissal of the remaining counts and a stipulated sentence of 44 months. In 2021, the court imposed the stipulated sentence: the three-year upper term on count 1, a consecutive eight-month term on count 7, (one-third of the middle term), and a concurrent three-year upper term on count 8. Effective in January 2022, Senate Bill 567 amended Penal Code section 1170(b) to provide that a 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.” The Attorney General argued that although SB 567 applies retroactively here, Todd stipulated to an upper-term sentence in his plea agreement. The court of appeal remanded for resentencing. Under the terms of the plea agreement, no term other than the upper term may be imposed; the court is not authorized to unilaterally modify the plea agreement. Unless Todd waives the statute’s requirements, if the court does not find circumstances to justify the aggravated term, the only remedy available to the court is to withdraw approval for the plea agreement.

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