People v. Tyler CA4/1

Filed 7/15/22 P. v. Tyler CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078771

Plaintiff and Respondent,

v. (Super. Ct. No. SCD278227)

ERIC LEWIS TYLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed and remanded with directions. Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Eric Lewis Tyler entered into a plea agreement under which he pleaded

guilty to one count of arson (Pen. Code,1 § 451 subd. (d)). Tyler also admitted one serious felony prior conviction (§ 667, subd. (a)(1)) and one strike prior (§ 667, subds. (b)-(i)). The plea agreement included a stipulated sentence of 11 years. The agreed sentence was comprised of the upper term of three years for arson, doubled by the strike prior plus five years for the serious felony prior. The remaining charges were to be dismissed. The court sentenced Tyler to an 11-year term consistent with the plea agreement. The court also imposed various fines and fees. One of the fees was a $154 criminal justice administration fee under Government Code section 29550.1. Tyler filed a timely notice of appeal and requested a certificate of probable cause. The request was denied. In his opening brief, Tyler challenged the criminal justice administration fee (which has already been repealed) and argued the remaining charges should be dismissed pursuant to the plea agreement. The People responded essentially agreeing with Tyler. While this case has been pending, the Legislature enacted Senate Bill No. 567 (Senate Bill 567), which amended section 1170 by making the middle term the presumptive term and restricted the trial court’s discretion in selecting the upper term. Because the sentence in this case is based on the upper term for the offense, we ordered supplemental briefing on the effect of Senate Bill 567 on this appeal. Tyler argues we should remand the case to reconsider the upper term sentence. We will decline to remand because this stipulated sentence was