People v. De La Rosa

Docket NumberH049363
Decision Date13 December 2023
Citation316 Cal.Rptr.3d 134
PartiesThe PEOPLE, Plaintiff and Respondent, v. Mariano Alejandro DE LA ROSA Burgara, Defendant and Appellant.
CourtCalifornia Court of Appeals

Trial Court: County of Santa Clara, Trial Judge: Hon. Charles E. Wilson II(Santa ClaraCounty Super. Ct.No. B1902295)

Anna L. Stuart, by appointment of the Court of Appeal under the Sixth District Appellate Program, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Arthur P. Beever, Deputy Attorney General and Julia Y. Je, Deputy Attorney General, for Plaintiff and Respondent.

Danner, J.

In this appeal, we agree with other courts that have decided that we are bound by recent precedent from the California Supreme Court to conclude that changes made by Senate BillNo. 567 (2021-2022 Reg. Sess.)(Senate Bill 567) to Penal Code section 1170, subdivision (b)1 apply retroactively to convictions reached by plea agreements providing for a stipulated sentence.We also agree with those courts that we must follow the California Supreme Court’s decision in People v. Stamps(2020)9 Cal.5th 685, 264 Cal. Rptr.3d 769, 467 P.3d 168(Stamps) to determine the applicable remedy.Nevertheless, we observe that in practice this seemingly simple remedy calls for a complex and burdensome series of decisions by the parties and the trial court.To assist them, we set out our understanding of the necessary steps following remand.

Facing charges that included willful, deliberate, and premeditated attempted murder and carried a life sentence, defendantMariano Alejandro De La Rosa Burgara(De La Rosa2) pleaded no contest to two charges: Assault with a deadly weapon (§ 245, subd. (a)(1)) and hit-and-run driving resulting in permanent, serious injury (Veh. Code, § 20001, subd. (b)(2)).He also admitted that he personally inflicted great bodily injury on the victim (GBI enhancement)(§ 12022.7, subd. (a)).

In October 2020, in accordance with De La Rosa’s negotiated plea agreement, the trial court sentenced him to an aggregate stipulated sentence of eight years in prison, which included a four-year upper term for his conviction for assault with a deadly weapon.Pursuant to the plea agreement, the court also dismissed the charges for conspiracy to commit murder and willful, deliberate, and premeditated attempted murder.

On appeal, De La Rosa contends the postsentencing enactment of Senate Bill 567, which altered the requirements for imposition of an upper term under section 1170, subdivision (b)(section 1170(b)), necessitates a remand for resentencing.The Attorney General concedes that Senate Bill 567 applies retroactively to De La Rosa’s nonfinal judgment.Nevertheless, the Attorney General maintains the changes to section 1170(b) are inapplicable to this case because De La Rosa entered into a plea agreement with a stipulated sentence that included an upper term.

The California Courts of Appeal are split on whether a defendant like De La Rosa, who received an upper term pursuant to a plea agreement that included a stipulated sentence, is entitled to a remand under Senate Bill 567.The issue is pending before our Supreme Court.(ComparePeople v. Todd(2023)88 Cal.App.5th 373, 381–382, 304 Cal.Rptr.3d 662(Todd), review grantedApr. 26, 2023, S279154[defendant entitled to remand] and People v. Fox(2023)90 Cal.App.5th 826, 831, 307 Cal. Rptr.3d 505(Fox)[same] with People v. Mitchell(2022)83 Cal.App.5th 1051, 1057–1059, 299 Cal.Rptr.3d 772(Mitchell), review grantedDec. 14, 2022, S2773143[defendant not entitled to remand];People v. Sallee(2023)88 Cal.App.5th 330, 333–334, 304 Cal.Rptr.3d 643(Sallee), review grantedApr. 26, 2023, S278690[same].)

For the reasons explained below, we agree with the courts in Todd and Fox that a defendant who stipulated to an upper term as part of a negotiated plea agreement is entitled to a remand under Senate Bill 567.We thus reverse the judgment and remand for further proceedings under amended section 1170(b).

I.FACTS AND PROCEDURAL BACKGROUND
A.Preliminary Hearing Evidence

About 11:00 p.m. on March 27, 2019, Vanessa G. and her boyfriend, Francisco Urias-Burgara, drove in Vanessa's black Nissan to a 7-Eleven store in Sunnyvale.4Vanessa entered the store, and Urias-Burgara stayed outside to smoke a cigarette.Victim Spencer D. approached Urias-Burgara and asked him for money or a lighter.A physical altercation ensued, with Spencer striking Urias-Burgara first.Vanessa exited the store and saw Spencer and Urias-Burgara fighting.She did not see any weapon.According to Vanessa, Spencer "threatened to kill [her and Urias-Burgara] and then reached behind his back."Spencer walked away from the store after the fight.

Urias-Burgara and Vanessa got into her Nissan.Urias-Burgara spoke briefly by phone to his brother, Jose D., who passed the call to their brother, De La Rosa.5Urias-Burgara asked De La Rosa for help.

Soon thereafter, De La Rosa arrived at the 7-Eleven driving his black Mercedes.De La Rosa spoke with Urias-Burgara.Both cars exited the 7-Eleven parking lot.Urias-Burgara eventually got out of Vanessa’s Nissan and entered the passenger seat of De La Rosa’s Mercedes.As Vanessa drove toward her home, she noticed Spencer at a gas station.She called Urias-Burgara and informed him of Spencer’s location.

Spencer proceeded to a shopping center and happened to meet his friend Andrew F.At 11:35 p.m., a surveillance camera captured a dark-colored sedan (which resembled De La Rosa’s Mercedes) enter and park in the shopping center’s parking lot.A couple of minutes later, Urias-Burgara exited the car’s passenger seat and walked around.The driver also got out of the car and went to the trunk.Both individuals got back inside the car.

As Andrew and Spencer walked through the shopping center’s parking lot, Andrew heard tires squealing and looked around.He saw Spencer down on the ground and a car driving away.A surveillance camera captured the dark-colored sedan colliding with Spencer around 11:43 p.m. Spencer suffered major injuries and was hospitalized.Andrew told the police that there were at least two people inside the car that hit Spencer.

Vanessa testified that after the incident, Urias-Burgara told her that De La Rosa was the driver of the car that hit Spencer.Urias-Burgara also said that he had wanted to get out of the car and have a one-on-one fight with the person who had punched him, but he was stopped from exiting the car.

A Sunnyvale detective testified that De La Rosa’s girlfriend, Mariana C., had reported that De La Rosa said "something bad happened" with his car when he was with his brother.6De La Rosa told Mariana that he had hit a person with his car because he was assisting his brother after his brother had been attacked.In addition, Mariana told the detective that the person involved in the incident had a gun.She said that after the date of the incident, she and De La Rosa took his Mercedes to Los Angeles because "the car could not be in the area."

B.Charges Against De La Rosa

Following a joint preliminary hearing, the Santa Clara County District Attorney filed an information charging De La Rosa and his brother Urias-Burgara with conspiracy to commit murder (§§ 182, subd. (a)(1),187, subd. (a); count 1), attempted murder (§§ 187, subd. (a),664; count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and hit-and-run driving (Veh. Code, § 20001, subd. (a); count 4).For count 2, the information alleged that De La Rosa committed the attempted murder willfully, deliberately, and with premeditation (§ 189) and personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)).Further, as to De La Rosa, counts 2 and 3 included a GBI enhancement allegation (§ 12022.7, subd. (a)).

C.De La Rosa's No Contest Plea and Sentencing

On March 5, 2020, pursuant to a written plea agreement, De La Rosa pleaded no contest to count 3 and count 4 (as amended7) and admitted the GBI enhancement allegation attached to count 3.In exchange for the dismissal of counts 1 and 2 at sentencing, De La Rosa would receive the upper term of four years on count 3,8 plus three years for the GBI enhancement attached to count 3 and one year (one-third the middle term) on count 4, for a total sentence of eight years in prison.De La Rosa offered the police report and the preliminary hearing transcript as the factual basis for his plea, and the district attorney stipulated that those documents provided a factual basis.The trial court accepted De La Rosa’s plea, finding a factual basis for it and that De La Rosa knowingly, voluntarily, and intelligently waived his rights.9

On October 15, 2020, in accordance with the plea agreement, the trial court sentenced De La Rosa to the stipulated sentence of eight years in prison, which included the upper term of four years on count 3 for the assault with a deadly weapon conviction.

This court subsequently granted De La Rosa relief from default and permission to file a late notice of appeal.In May 2022, De La Rosa filed a notice of appeal, and the trial court granted his request for a certificate of probable cause.

II.DISCUSSION

Effective January 1, 2022, section 1170(b) was amended by Senate Bill 567 "to make the middle term the presumptive sentence for a term of imprisonment" unless aggravating circumstances stipulated to by the defendant or proved true beyond a reasonable doubt justify imposition of an upper term.10(People v. Lopez(2022)78 Cal.App.5th 459, 464, 293 Cal.Rptr.3d 719(Lopez), Stats. 2021. ch. 731, § 1.3.)

Specifically, current section 1170, subdivision (b)(1) states: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2)."

Section...

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