People v. Carbajal CA3

Filed 8/8/23 P. v. Carbajal CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C097129

Plaintiff and Respondent, (Super. Ct. No. CRF1900725)

v.

ELEANA MISHELLE CARBAJAL,

Defendant and Appellant.

Defendant Eleana Mishelle Carbajal left her baby alone in the bathtub resulting in his death. Originally charged with murder, defendant pled no contest to felony child abuse while personally inflicting great bodily injury and involuntary manslaughter in exchange for a stipulated term of 12 years in state prison with execution suspended and probation. After defendant admitted violating probation, the trial court lifted the stay on the previously suspended sentence, which included upper terms on both counts and the enhancement. On appeal, defendant contends she is entitled to be resentenced under recently enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which limits a trial

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court’s discretion to impose upper term sentences. (Stats. 2021, ch. 731, § 1.3.) Assuming defendant may raise her appellate claim, we conclude defendant is not entitled to the ameliorative benefit of Senate Bill 567 because the trial court did not exercise any discretion in imposing the stipulated sentence under the parties’ plea agreement. Accordingly, we shall affirm the judgment. I. BACKGROUND The facts underlying defendant’s convictions are not relevant to our disposition.1 Briefly summarized, defendant left her 22-month-old son unattended in the bathtub after filling it with a few inches of water; when she returned several minutes later, she found him unresponsive, and he was later pronounced dead at the hospital. Following her son’s death, defendant was charged with murder (Pen. Code, § 187, subd. (a)—count 1),2 willful harm or injury to a child likely to cause great bodily injury or death (felony child abuse) (§ 273a, subd. (a)—count 2), and involuntary manslaughter (§ 192, subd. (b)—count 3). Count 2 included a great bodily injury enhancement (§ 12022.7, subd. (d)). In November 2019, pursuant to a negotiated plea bargain, defendant pled no contest to felony child abuse and involuntary manslaughter and admitted the great bodily injury enhancement in exchange for a stipulated term of 12 years in state prison that would be suspended with a five-year grant of felony probation and dismissal of the remaining murder charge. The following month, in December 2019, the trial court imposed and suspended the stipulated 12-year term, which included the upper term of six