People v. Sallee CA5

Filed 11/12/26 P. v. Sallee CA5 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F083728 Plaintiff and Respondent, (Super. Ct. No. 19CR-05532) v. WILLIAM FLOYD SALLEE, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-  INTRODUCTION Defendant William Floyd Sallee entered into a plea agreement with the People that specified the punishment to be imposed. He pled no contest to first degree residential burglary and admitted a prior felony “strike” conviction within the meaning of the “Three Strikes” law. He also entered a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), whereby he was permitted to remain free of custody until his sentencing and, if he obeyed all laws and appeared for sentencing, the trial court would impose a sentence of eight years in prison, but if he failed to do so the trial court would impose a sentence of 12 years in prison. Defendant failed to appear for sentencing. After defendant was taken into custody, the trial court sentenced defendant to 12 years in prison. Defendant appealed, arguing the record did not support a finding that his failure to appear was willful. In our prior opinion, we concluded the trial court had not made the required finding and remanded for the trial court to determine whether defendant’s failure to appear was willful. (People v. Sallee (May 13, 2021, F080805) [nonpub. opn.] (Sallee).) On remand, the trial court held a resentencing hearing, concluded that defendant’s failure to appear had been willful, and reimposed the 12-year sentence. Defendant again appealed, contending the sentence must be vacated because the record does not support a finding that his failure to appear was willful. The People disagreed. We ordered the parties to submit supplemental briefing regarding the effect of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill No. 567) amendments to Penal Code section 1170, subdivision (b).1 Defendant argued his sentence must be vacated and his case remanded for resentencing in light of these amendments. The People disagreed, arguing the amendments do not apply to this case because defendant entered a plea agreement with a stipulated term of imprisonment. 1 All further undesignated statutory references are to the Penal Code. 2.  We initially held that section 1170, subdivision (b), as amended by Senate Bill No. 567, does not apply when a defendant enters a plea agreement with a stipulated term of imprisonment. We also held that substantial evidence supports the trial court’s finding that defendant’s failure to appear was willful. On that basis, we affirmed. Our Supreme Court granted defendant’s petition for review (People v. Sallee, S278690, Supreme Ct. Mins., Apr. 26, 2023) and transferred the matter to us with directions to vacate our opinion and reconsider the cause in light of People v. Mitchell (2026) 19 Cal.5th 729 (Mitchell) (see People v. Sallee, S278690, Supreme Ct. Mins., Sept. 30, 2026). In accordance with the direction from the Supreme Court, we vacated our prior opinion and gave the parties an opportunity to file supplemental briefing. In supplemental briefing, defendant argues the matter must be remanded for further proceedings consistent with Mitchell. The People filed no response. We once again conclude substantial evidence supports the trial court’s finding that defendant’s failure to appear was willful. However, having now reconsidered the cause in light of Mitchell, we conclude defendant is entitled to the retroactive benefit of Senate Bill No. 567’s amendments to section 1170, subdivision (b), notwithstanding his agreement to a specified term as part of his plea bargain. Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion. PROCEDURAL SUMMARY On October 1, 2019, the Merced County District Attorney charged defendant with felony residential burglary (§ 459; count 1) and dissuading a witness (§ 136.1, subd. (b)(1); count 2). The complaint further alleged defendant had suffered two prior felony “strike” convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)–(j), 1170.12), which also qualified as prior serious felony convictions (§ 667, subd. (a)(1)), and had served a prior prison term (§ 667.5, former subd. (b)). On December 9, 2019, the trial court struck the older of defendant’s two prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. 3.  On the same date, pursuant to an agreement with the People, defendant pled no contest to count 1 and admitted having suffered a prior strike conviction with the understanding he would receive eight years in state prison (the middle term of four years, doubled because of the prior strike conviction) contingent upon his appearance at the sentencing hearing on January 9, 2020. If he failed to appear at that hearing, he would receive a sentence of 12 years (the upper term of six years, doubled because of the prior strike conviction). In exchange for the plea, count 2 and the remaining enhancements would be dismissed. The court accepted the plea. Defendant did not appear at the January 9, 2020 sentencing hearing. On January 22, 2020, the trial court sentenced defendant to a term of 12 years (the upper term of six years, doubled because of the prior strike conviction) and imposed various fees and fines. On May 13, 2021, this court issued an opinion on defendant’s prior appeal, vacating the sentence and remanding the matter for the trial court to determine whether defendant’s failure to appear for sentencing was willful. (Sallee, supra, F080805.) On December 14, 2021, the trial court held a hearing on the willfulness of defendant’s failure to appear at the January 9, 2020 sentencing hearing. The trial court concluded that defendant’s failure to appear was willful without taking any additional evidence. On January 3, 2022, defendant filed a notice of appeal. FACTS RELATING TO FAILURE TO APPEAR 2 January 22, 2020 Sentencing Hearing “Prior to imposition of sentence on January 22, 2020, defendant’s counsel made an offer of proof. He represented that, while defendant was on release after his guilty plea, his ‘father was very ill. [His father] had two 2 Because defendant raises only sentencing issues, the facts underlying the offenses are not relevant and are omitted from this opinion. 4.  heart attacks while [defendant] was out on his Cruz waiver and was in and out of the hospital, so he was trying to help with his father, who is very ill; as well as his mother, who is elderly and was trying to deal with everything with his father, so that is why he was not able to come to court [for the January 9, 2020 hearing]. [¶] He did call his parole agent shortly after he did miss court and turned himself in.’ “Defendant’s mother testified at the sentencing hearing that defendant’s ‘father did have two heart attacks and was in three different hospitals from January 28th . . . to January 7th—I mean the 8th, and his father is very seriously ill.’ She further testified that on the morning of January 9, 2020, defendant ‘overslept, and [when] he woke up, he said, “I’ve got to call my parole officer[.]” [However,] she was out sick with bronchitis for three days ….’ “The trial court did not explicitly find that defendant’s failure to appear at the January 9, 2020 hearing was willful. It concluded that defendant ‘had entered a plea and was supposed to come back on January 9th, and he didn’t come back.’ It further stated that it had ‘ma[d]e it clear [to defendant that] when you do a Cruz waiver that you need to come back.’ The trial court then imposed a 12-year term of imprisonment.” (Sallee, supra, F080805.) The trial court did not discuss any aggravating or mitigating circumstances before imposing the sentence. After the trial court imposed the sentence, the following exchange occurred in the context of calculating custody credits: “[DEFENDANT’S COUNSEL]: I believe he got picked up by his parole agent on January 10th. I don’t know if he’s been in our jail since January 10th. I think he may have actually been picked up in Stanislaus County. “THE DEFENDANT: I went to Stanislaus County. Remember, I mentioned that I might have that warrant? “THE COURT: I don’t recall it now, but I’m not doubting what you’re saying. “THE DEFENDANT: While I was out on the Cruz waiver, they picked me up. I spent a week in jail until they got – took care of the paperwork on the warrant. 5.  “THE COURT: Okay. Well, that would be a separate case than this. Our jail shows you came into custody here on [January] 15[, 2020] ….” (Italics added.) Proceedings on Remand On October 15, 2021, defendant filed a document entitled “motion for modification of sentence.” (Capitalization & boldface omitted.) The People filed an opposition to that motion, attached to which was a document reflecting that defendant was arrested on January 10, 2020, at 10:10 a.m., and released from custody on January 15, 2020. On December 14, 2021, defendant elected to withdraw the motion and submitted the matter on the record before the court. The People submitted the matter on the record, prior arguments, and comments in their opposition. At the December 14, 2021 hearing, the trial court indicated that it “reviewed the transcript [from the January 22, 2020 sentencing hearing] and it refreshed [its] memory regarding the events.” The trial court noted that it “did not state [at the January 22, 2020 hearing] that [it] found [defendant’s] failure to appear to be willful. But based upon [its] review of the transcript prior to the hearing … , [it] reached the same conclusion”—that defendant’s failure to appear was willful. The trial court summarized its finding and the basis for its finding: “[Defendant] said [he] had slept in…. [He said his] father had had two heart attacks. [Defendant] had overslept and [he] had turned [him]self in that, [he] believe[d], the following day. And then [defendant’s] mother also testified that [defendant’s] father had been very ill. But between the two statements there were differing interpretations of what actually happened. [Defendant’s] attorney said [defendant] believe[d] [he had] turned [him]self in the same day. Then [defendant’s] mother said something about [defendant] had tried to call [his] parole agent for three days and she was out sick. And then [defendant] made a statement about [how] [he] had been picked up on a warrant from Stanislaus County. “So I found those conflicting statements didn’t support the finding that [defendant’s failure to appear] wasn’t willful. To me, it was willful because I had no idea what really actually happened. And I still have that same opinion today [on December 14, 2021]. 6.  “[Defendant’s] original date for sentencing, … was January 9[, 2020]. The next day would have been January 10[, 2020]. And [defendant was not] before the Court until Wednesday, January 22[, 2020]. [¶] … [¶] “… So given – I’m not arguing with you, [defendant]. Given that lapse in time and, to me, the conflicting statements between [defendant] and [his] mother, I am finding it was a willful failure to appear. And to be honest with you, just oversleeping, to me, is also willful. I have to get up and go to work every day. I set my alarm. I’m not oversleeping. “THE DEFENDANT: Well, we had – my dad was in the hospital all that night. We came to court. We did set an alarm to go to court. We missed it and here we are now, you know. But if you look on my arrest record, right, when did the parole officers come pick me up? The next day. “THE COURT: See that’s it, [defendant]. I have no evidence that any of that is true. “THE DEFENDANT: All you have to do is notify Stanislaus County. “THE COURT: And it’s not supported by – it’s not supported by the facts, [defendant], that I have in front of me. In front of me I show two conflicting explanations for what happened. No support. And it was – you didn’t appear ‘til 11 days after your sentencing date. You weren’t in court – “THE DEFENDANT: But Modesto – “THE COURT: I’m not arguing with you, [defendant]. That’s the finding I’m making…. [¶] … [¶] … There were two conflicting stories between what [defendant] said and [defendant’s mother] said …. So that’s why, to me, it was willful. So that’s what I’m finding.” DISCUSSION I. Senate Bill No. 567 and Mitchell Defendant initially argued his sentence must be vacated and the case remanded for resentencing in light of Senate Bill No. 567’s amendments to section 1170, subdivision (b). The People argued the amendments to section 1170, subdivision (b) do not apply to this case because defendant entered a plea agreement with a stipulated term of imprisonment. Following our Supreme Court’s transfer of the matter to us for 7. reconsideration in light of Mitchell, defendant argues remand is required for further consideration in accordance with the procedures set forth in Mitchell. The People filed no response. For reasons we explain, we agree with defendant. Section 1170, subdivision (b) governs imposition of a judgment of imprisonment when a statute specifies three possible terms. Prior to 2007, section 1170, subdivision (b) set the middle term as the presumptive term, but authorized the trial court to impose the upper term if it found circumstances in aggravation. (§ 1170, former subd. (b).) The trial court was required to set forth on the record the facts supporting imposition of the upper term, and those facts were required to be established by a preponderance of the evidence. (Ibid.; Cal. Rules of Court, former rule 4.420(b).) However, in 2007, the United States Supreme Court determined this sentencing scheme was unconstitutional because, “under the Sixth Amendment, any fact [other than a prior conviction] that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California (2007) 549 U.S. 270, 281; see id. at pp. 288–289.) In response to Cunningham, the California Legislature amended section 1170, subdivision (b) to eliminate the presumption for the middle term and to instead provide that “the choice of the appropriate term shall rest within the sound discretion of the court.” (Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007, as urgency legislation.) The intent of this urgency legislation was to “maintain stability in California’s criminal justice system while the criminal justice and sentencing structures in California sentencing [were] being reviewed.” (Stats. 2007, ch. 3, § 1.) This statutory language providing trial courts broad discretion to choose within the sentencing triad remained intact until January 1, 2022. (See Stats. 2007, ch. 3, § 2; see also Stats. 2020, ch. 29, § 15.) Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b), to provide: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order 8. imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).” (Id., subd. (b)(1).) Subdivision (b)(2) in turn provides, “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….” Subdivision (b)(3) creates an exception to this requirement: “Notwithstanding paragraphs (1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” It is undisputed that Senate Bill No. 567 is retroactive to cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [holding that another ameliorative amendment to § 1170 by Sen. Bill No. 567 applies retroactively to cases not yet final on appeal]; accord, Mitchell, supra, 19 Cal.5th at p. 740.) The parties also agree defendant’s sentence is not yet final on appeal. However, in their initial briefing, the parties disputed whether Senate Bill No. 567 applies in the context of a stipulated plea. Our Supreme Court identified the “real question” underlying this dispute as “whether a defendant may waive section 1170[, subdivision ](b)’s limitation on upper term sentences and permit the trial court to impose such a sentence pursuant to the parties’ agreement and without a need to independently determine whether aggravating facts ‘justify’ the sentence.” (Mitchell, at p. 741.) The high court held that “a plea bargain that includes a stipulated upper term sentence absolves the trial court of its duty to determine that the sentence is justified by facts found in compliance with section 1170[, subdivision ](b)(2)’s provisions. But this is only true if the defendant, in entering the plea bargain, validly waives section 1170[, subdivision ](b)’s requirements.” (Mitchell, supra, 19 Cal.5th at p. 744.) Additionally, “the defendant’s waiver must comply with the requirements for waiving a constitutional 9. right.” (Id. at p. 745.) Moreover, a defendant who entered a plea prior to the effective date of Senate Bill No. 567 is entitled to the retroactive benefit of the new law “notwithstanding [his or] her agreement to a specified term as part of a plea bargain.” (Mitchell, at p. 745.) The high court determined that remand is the appropriate remedy in the circumstances presented here, where the defendant agreed to an upper-term sentence before section 1170, subdivision (b) was amended. (Mitchell, supra, 19 Cal.5th at p. 749.) On remand, the defendant must be allowed to reconsider the plea in light of the change in law. (Ibid.) If the defendant “chooses to keep the bargain [he or] she negotiated, [he or] she may affirm [his or] her agreement and enter appropriate waivers of section 1170[, subdivision ](b)’s current requirements. Alternatively, [he or] she may withdraw [his or] her assent to the bargain and return the parties to a pre-plea posture, where the prosecution will be held to its burden of proof.” (Ibid.) If the defendant reaffirms acceptance of the plea bargain and enters a new waiver of the requirements of section 1170, subdivision (b), the court must reinstate the original sentence as negotiated by the parties. If the defendant declines to enter a waiver of section 1170, subdivision (b)’s requirements, the parties may agree to modify the existing plea agreement to specify a midterm sentence on the affected count. If the court accepts the modification, it shall sentence the defendant accordingly. If no such agreement is reached and approved, the defendant’s remedy is to withdraw his or her assent to the bargain, in which case the court shall set aside the plea, and the matter shall proceed as if no plea had been entered. (Mitchell, at pp. 751–752.) Such course leaves the parties free to renegotiate a new disposition if they choose. (Id. at p. 752.) Here, defendant entered into his plea and agreed to an upper-term sentence before section 1170, subdivision (b) was amended. He is entitled to the retroactive benefit of the change in law and did not validly waive section 1170, subdivision (b)’s requirements. Accordingly, we will reverse the judgment because the facts relied on to justify the upper 10. term were not “stipulated to or proven beyond a reasonable doubt at a jury or court trial.” (Mitchell, supra, 19 Cal.5th at p. 735.) On remand, defendant may reaffirm the bargain and waive the requirements of section 1170, subdivision (b), or he may withdraw his plea and return the parties to a pre-plea posture, with the prosecutor bearing the burden of proof. (Mitchell, at p. 749.) II. Willfulness of Defendant’s Failure To Appear We address this issue in the event the plea bargain is reaffirmed on remand. Defendant argues the trial court erred in finding that he willfully failed to appear on January 9, 2020. The People disagree, arguing that the trial court’s finding that defendant’s failure to appear was willful was based upon substantial evidence. Specifically, the People argue, among other things, that defendant’s failure to appear at any time on January 9, 2020, or on January 10, 2020, prior to his 10:10 a.m. arrest, was sufficient for the trial court to have disbelieved defendant’s proffered explanation and conclude that defendant’s failure to appear had been willful. We agree with the People. The record contains substantial evidence that defendant willfully failed to appear. Cruz held that a defendant may waive the right to withdraw his or her guilty plea if he or she is “fully advised” of that right. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) A defendant may expressly agree to a greater sentence as a sanction for engaging in certain behavior as long as his or her waiver is contained in the plea bargain itself. (People v. Masloski (2001) 25 Cal.4th 1212, 1221–1222; People v. Vargas (1990) 223 Cal.App.3d 1107, 1113.) Therefore, if a defendant agrees to a Cruz waiver and willfully fails to comply with the terms of the agreement (for instance, by failing to appear at the sentencing hearing) the trial court may impose a term of imprisonment greater than the bargained-for term without permitting the defendant to withdraw his or her plea. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; Vargas, supra, 223 Cal.App.3d at pp. 1112–1113 [a defendant may agree to imposition of a specific greater term in the event of his or her nonappearance]; see Masloski, supra, 25 Cal.4th at pp. 1219–1223; People v. Puente 11. (2008) 165 Cal.App.4th 1143, 1146, fn. 3.) A defendant acts “willfully” if he or she knows what he or she is doing and intends to do it. (§ 7, subd. 1; People v. Atkins (2001) 25 Cal.4th 76, 85–86.) A trial court must find that a defendant’s failure to appear was willful by a preponderance of the evidence. (People v. Rabanales (2008) 168 Cal.App.4th 494, 505; People v. Vargas (2007) 148 Cal.App.4th 644, 652.) We review the trial court’s determination for substantial evidence. (Rabanales, supra, at p. 509.) In doing so, “[w]e resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.) Defendant contends that substantial evidence did not support a finding that his failure to appear was willful because “[t]he only fact supporting the trial court’s finding that [defendant] failed to appear is that [defendant] did not appear.” He relies on this court’s decision in People v. Zaring (1992) 8 Cal.App.4th 362 for the proposition that his family issues—here, his father’s poor health—can render a defendant’s failure to appear not willful. In Zaring, the defendant was 22 minutes late to court due to an unforeseen problem with childcare. (Id. at pp. 376, 379.) The trial court revoked probation. (Id. at p. 379.) This court held the failure to report was not “the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court,” nor would such conduct constitute a willful violation of a probationary condition, assuming such condition was ordered. (Ibid.) Here, defendant did not appear at all on the date of his sentencing hearing. Defendant’s explanation for missing the hearing was that he overslept. However, the trial court could reasonably have concluded that if defendant had merely overslept due to a family emergency, he would have come to court to explain the error as soon as he realized it. Instead, defendant appears to have made no attempt to appear before the Merced County Superior Court on the date of his sentencing or the following morning 12. before he was arrested in Stanislaus County. The trial court was in the best position to determine the credibility of the claim that defendant failed to appear because he overslept. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 78 [because the trial court can observe the demeanor of a witness, it is in the best position to assess credibility].) Based on the record before us, the trial court could reasonably have concluded by a preponderance of the evidence that defendant’s failure to appear was willful. Substantial evidence supported the trial court’s conclusion.3 DISPOSITION The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. DETJEN, J. WE CONCUR: HILL, P. J. SNAUFFER, J. 3 We do not agree with the trial court’s comment that oversleeping after a night in the hospital with a family member, standing alone, necessarily constitutes a willful violation of a Cruz waiver. We again emphasize that this is not a case where defendant overslept but then proceeded to the courthouse immediately after recognizing his mistake. 13.