People v. Nixon CA3

California Court of Appeal Sep 30, 2022 No. C094767Unpublished

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Holding. The sentencing amendments enacted by Senate Bill No. 567 do not apply to stipulated sentences reached through negotiated plea agreements because such agreements divest the trial court of the discretion to select between sentencing triad terms.

Issues

Do the sentencing provisions of Senate Bill No. 567 apply to stipulated sentences imposed pursuant to a negotiated plea agreement?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The sentencing provisions of Senate Bill No. 567 do not apply to stipulated sentences.”

“The plain language of the amendatory language in section 1170 relates to the discretion involved when the court fashions and imposes a sentence from a sentencing triad, not the parties’ ability to negotiate or the court’s authority to accept a stipulated sentence.”

“Because under these circumstances the trial court could not both accept the plea agreement and make a discretionary sentencing choice under section 1170, subdivision (b), Senate Bill 567’s amendments of section 1170 are inapplicable to this case.”

Filed 9/30/22 P. v. Nixon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094767

Plaintiff and Respondent, (Super. Ct. No. 17FE009669)

BRANDON ANDRE KEITH NIXON,

Defendant and Appellant.

Defendant Brandon Andre Keith Nixon stipulated to the terms of his sentence. He appeals and seeks resentencing under the ameliorative sentencing provisions of Senate Bill No. 567 regarding upper term sentences and sentences imposed on youthful offenders. We affirm the judgment. The sentencing provisions of Senate Bill No. 567 do not apply to stipulated sentences.

FACTS AND HISTORY OF THE PROCEEDINGS Pursuant to a plea agreement, defendant in 2018 pleaded no contest to carrying a concealed weapon, carrying a loaded firearm, perjury, and two misdemeanor counts of

unlawfully possessing ammunition. (Pen. Code, §§ 25400, subd. (a)(1); 25850, subd. (a); 118, subd. (a); 30305, subd. (a)(1); statutory section citations that follow are found in the Penal Code unless otherwise stated.) The trial court sentenced defendant consistent with the stipulated terms of the plea agreement: a five-year, four-month split sentence with the first four months to be served in custody and the remaining five years on mandatory supervision. The sentence was based on the upper term of four years for the perjury count and eight months (one-third the middle term) for each of the weapon counts, to be served consecutively. For the misdemeanor counts, the court sentenced defendant to concurrent terms of four months each with both terms to be served in custody. In 2021, defendant was convicted in Sacramento Superior Court case No. 19FE014370 of making criminal threats. (§ 422.) (An appeal from the new judgment is currently pending. (People v. Nixon, C094488).) Due to the new conviction, the trial court in the present case revoked defendant’s mandatory supervision and ordered him to serve the remainder of his sentence in state prison.

People v. Nixon CA3

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THE PEOPLE, C094767

BRANDON ANDRE KEITH NIXON,

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