Full Opinion

Filed 11/12/26 P. v. Caro CA2/6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B315233 (Super. Ct. No. BA450645) Plaintiff and Respondent, (Los Angeles County) v. OPINION ON TRANSFER FROM THE SUPREME JOSE CARO, COURT Defendant and Appellant. In 2016, appellant Jose Caro was charged with attempted willful, deliberate, and premeditated murder (Pen. Code,1 §§ 664, subd. (a), 187, subd. (a); count 1), kidnapping to commit rape (§ 209, subd. (b)(1); count 2), assault with intent to commit a sex offense (§ 220, subd. (a)(1); count 3), assault with a deadly weapon (§ 245, subd. (a)(1); counts 4 & 5), criminal threats (§ 422, subd. (a); count 6), recklessly fleeing a police vehicle (Veh. Code, § 2800.2; count 7) and stalking (§ 646.9, subd. (a); count 8). As to 1 All statutory references are to the Penal Code unless otherwise stated. counts 1 through 3, Caro was alleged to have used deadly weapons (§ 12022, subd. (b)(1)). The prosecution and Caro agreed on a negotiated disposition. The prosecution agreed to not pursue life sentences for counts 1 or 2, and amended count 2 to charge simple kidnapping (§ 207, subd. (a)). Caro pleaded no contest to counts 1 through 6 and count 8. He also admitted use of a deadly weapon as to counts 1 and 2. Caro waived presentence credits and waived his right to appeal. Pursuant to the parties’ plea agreement, the trial court sentenced Caro to 22 years in prison.2 Caro contends section 1170, subdivision (b), as amended by Senate Bill No. 567 (2021–2022 Reg. Sess.), requires a remand because he did not admit, and the trial court did not find, circumstances in aggravation justifying a sentence exceeding the middle term. He further contends the court erroneously denied two Marsden3 motions. 2 The stipulated sentence was comprised of the following consecutive terms: (1) as to count 1, the upper term of nine years, plus one year for the deadly weapon use enhancement; (2) as to count 2, one year and eight months (one-third of the midterm), plus one year for the deadly weapon use enhancement; (3) as to count 3, the upper term of six years; (4) as to counts 4 and 5, one year each (one-third of the midterm); and (5) eight months each for counts 6 and 8 (one-third of the midterm). Pursuant to the plea agreement, the trial court dismissed count 7 and the deadly weapon enhancement to count 3. 3 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Caro challenges only the Marsden hearings regarding his second attorney. It is unnecessary to discuss the two earlier Marsden hearings regarding his original attorney. 2 We previously filed an opinion affirming the judgment. (People v. Caro (Oct. 26, 2022, B315233) [nonpub. opn.] 2022 WL 14737158.) Our Supreme Court granted review (S277123) and later transferred the case back to us with directions to vacate our decision and reconsider in light of People v. Mitchell (2026) 19 Cal.5th 729 (Mitchell). We agree with the parties that we must remand pursuant to Mitchell for further proceedings regarding the sentence. In all other respects, we affirm. FACTUAL BACKGROUND For several weeks, Caro repeatedly visited the victim’s workplace. To discourage Caro’s attentions, the victim said she was married. Caro wanted to know who the victim’s husband was so that he could hurt him. On the date of the offense, Caro grabbed the victim, forced her out of her workplace, dragged her into his car, struck her knee with a hammer and bit her hand and forehead. As Caro drove, he threatened to rape and kill the victim. When he stopped, he attacked the victim, pulled her shirt down, forcibly fondled her and attempted to have sex with her. DISCUSSION Senate Bill No. 567 At the time Caro was sentenced in August 2021, section 1170, subdivision (b) gave trial courts broad discretion to decide which of the three terms specified for an offense would best serve the interests of justice. (§ 1170, subd. (b), as amended by Stats. 2020, ch. 29, § 14.) The statute was later amended by Senate Bill No. 567, effective January 1, 2022. (Stats. 2021, ch. 731, § 1.3.) Under the amended statute, “[w]hen 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 3 otherwise provided in paragraph (2).” (§ 1170, subd. (b)(1).) “The 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.” (§ 1170, subd. (b)(2).) This amendment is retroactive to Caro because it is ameliorative legislation enacted while his case was on appeal. (Mitchell, supra, 19 Cal.5th at p. 745; People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) The procedural history here is virtually identical to that in Mitchell. Both defendants pleaded no contest as part of a plea bargain with a stipulated sentence that included the high term for one or more counts. Senate Bill No. 567 was enacted after sentencing in both cases and while their cases were on appeal. In neither case was there a stipulation nor finding beyond a reasonable doubt of an aggravating factor later required for a high term pursuant to Senate Bill No. 567. Nor did either defendant waive the right to such a determination. (Mitchell, supra, 19 Cal.5th at pp. 735, 748.) We conclude the remedy provided in Mitchell applies here: “[D]efendants like Mitchell, who agreed to an upper term sentence as part of a plea bargain, may seek the retroactive benefit of section 1170(b)’s amended provisions to their nonfinal judgments. We . . . direct that the matter be returned to the trial court. . . . On remand, Mitchell may either waive or invoke section 1170(b)’s requirements. If she reaffirms her acceptance of the plea bargain and waives the rights now conferred under section 1170(b), the court shall reinstate the original sentence as negotiated by the parties. If she declines to enter that waiver, in 4 lieu of further proceedings the parties may agree to modify the existing plea bargain and accept a midterm base sentence . . . , then seek the court’s approval of that downward departure. Absent a modified agreement and approval, Mitchell’s remedy is to withdraw her assent to the bargain, in which case Mitchell’s plea will be set aside and the parties returned to a pre-plea posture. At that point they would remain free to renegotiate further if they choose or to proceed to trial.” (Mitchell, supra, 19 Cal.5th at pp. 735–736.) We order that disposition here. Marsden rulings Caro contends the trial court abused its discretion when it denied his two motions to disqualify his second appointed counsel pursuant to Marsden, supra, 2 Cal.3d 118. We disagree. Caro forfeited this contention by pleading no contest and waiving his appellate rights. (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) And because Caro does not contend his no contest plea “ ‘was not intelligently and voluntarily made,’ or ‘that the advice he received from counsel was inappropriate concerning his plea,’ ” his claim is not cognizable on appeal. (People v. Lovings (2004) 118 Cal.App.4th 1305, 1311.) Nor would Caro be entitled to relief on the merits. We review denial of a Marsden motion for abuse of discretion. (People v. Hart (1999) 20 Cal.4th 546, 603 (Hart).) A trial court must replace appointed counsel “ ‘ “if the record clearly shows that the . . . appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’ ” (Ibid.) “ ‘Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 5 “substantially impair” the defendant’s right to assistance of counsel.’ ” (Ibid.) At the first Marsden hearing, Caro stated his attorney would present “no defense.” Caro said he gave counsel information about one or two witnesses, but counsel told him “No.” Caro said counsel did not comply with his request to extract information from Caro’s phone that “is important to my defense.” In response to Caro’s allegations, counsel explained his anticipated trial defense and his evaluation of the phone data. The trial court denied the motion, stating that counsel was “a very experienced lawyer,” and the decisions about trial tactics, defenses, and what evidence to present were up to counsel. We conclude the trial court did not abuse its discretion when it denied the motion. A “defendant’s complaints regarding [counsel’s] purported inadequate investigation, trial preparation, and trial strategy were essentially tactical disagreements, which do not by themselves constitute an ‘irreconcilable conflict.’ [Citation.] Indeed, a ‘defendant does not have the right to present a defense of [their] own choosing, but merely the right to an adequate and competent defense.’ [Citation.] . . . [D]efendant’s complaints mostly show disagreement as to tactics, which, by itself, is insufficient to compel discharge of appointed counsel.” (People v. Cole (2004) 33 Cal.4th 1158, 1192.) At the second Marsden hearing, Caro stated counsel had “offended” him by offering that Caro could live with him if he did not have a place to live when he got out of custody. Caro “felt something was strange,” “[l]ike, he was accosting me.” He added, “But I didn’t interpret it like that.” The court commented that Caro’s statement “didn’t make any sense.” Caro said, “I feel like 6 he is retaliating against me and that he is only, uh, working on his interests and not mine.” Counsel denied the accusations. He said every time he visited Caro he was with his investigator and a Spanish language interpreter. Counsel denied inviting Caro to live with him. He explained the work he did on Caro’s behalf, including making a section 995 motion, continuously reading the file, diligently preparing for trial, and trying to resolve the case with the prosecutor. The trial court denied the motion. The court noted counsel’s good reputation, his diligent work on the case, and the lack of specifics to support Caro’s “feelings.” “ ‘To the extent there was a credibility question between defendant and counsel at the hearing, the court was “entitled to accept counsel’s explanation.” ’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1245.) Caro did not show that counsel failed to provide adequate representation or show an irreconcilable conflict likely to result in ineffective representation. (Hart, supra, 20 Cal.4th at p. 603.) No abuse of discretion has been shown. DISPOSITION Our opinion filed October 26, 2022, is vacated. The matter is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed. NOT TO BE PUBLISHED. BALTODANO, J. We concur: CODY, P. J. HIPPACH, J. 7 George G. Lomeli, Judge Superior Court County of Los Angeles ______________________________ John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Chief Assistant Attorneys General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle, Rene Judkiewicz and Shezad Thakor, Deputy Attorneys General, for Plaintiff and Respondent.