May 10, 2023 By Paul Wallin

People v. Fox: Seeking Resentencing May Jeopardize Your Plea Bargain

In a recent ruling, the First District Court of Appeal has held that a criminal defendant is entitled to seek resentencing if he was sentenced to the highest term without proof of aggravating circumstances. However, it is possible that doing so will jeopardize any existing plea bargain between the defendant and the prosecutor. If you would like to seek resentencing, contact our attorneys at Wallin & Klarich to see how we can help you preserve your plea bargain. 


In People v. Fox, the defendant Brian Fox was charged with eight felony counts in 2015 for shooting at two tourists in San Francisco as he fled after stealing a camera from the pair. Fox initially entered into a plea agreement where he would plead guilty to one count of robbery, admit to personally using a firearm during the offense, and agree to a 15-year sentence. The sentence included a 10-year enhancement for the firearm and a 5-year aggravated term for robbery. However, after sentencing but before Fox’s conviction was final, the Legislature amended Penal Code Section 1170(b), to alter a trial court’s discretion to choose the lower, middle, or upper term for a crime with a sentencing triad, such as the robbery charge to which Fox pleaded guilty. 

Changes to PC Section 1170(b) 

When Fox was sentenced in 2017, PC Section 1170(b) at the time provided that when a defendant was sentenced to prison for a crime with a sentencing triad, the trial court had the discretion to choose the appropriate term. Beginning in 2022, Senate Bill 567 amended the section to state that a court may only impose a sentence exceeding the middle term when there are circumstances in aggravation of the crime that justify it, and those circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial. In other words, the middle term is the presumptive sentence unless aggravating circumstances admitted or proved beyond a reasonable doubt justify the upper term. 


After PC Section 1170(b) was amended, Fox appealed, seeking remand for resentencing in light of the change. The appellate court agreed with Fox that because the aggravating circumstances were not proven beyond a reasonable doubt and Fox did not admit to them, the appropriate presumptive sentence was the middle term. However, when a defendant seeks resentencing under an ameliorative statute, if the court exercises its discretion to withdraw approval for a plea agreement, the prosecution is free to modify the bargain or withdraw it entirely. 

The court here ruled that a defendant cannot seek to have a portion of a sentence stricken and still retain the other benefits of a plea bargain. Thus, Fox is free to waive or invoke the requirements of PC Section 1170(b), but if the prosecution or the trial court no longer approves of the plea agreement in conjunction with the reduction, the court must return the parties to the status quo. Given that Fox has already served years of his sentence and faces an indeterminate sentence if the plea bargain falls through, it may not be in his best interest to seek resentencing. Still, it is his choice whether or not to do so. 

Contact Wallin & Klarich Today 

If you believe that you are eligible for resentencing under this new amendment, contact Wallin & Klarich as soon as possible to see how we can help. At Wallin & Klarich, we stay up to date with the most recent legal developments so that we can better assist you. With 40+ years of experience, our attorneys have helped thousands of clients successfully reduce or dismiss their sentences, and we have the skills and resources to help you avoid hefty fines and jail time. 

With offices in Orange County, Riverside, San Bernardino, Victorville, Torrance, West Covina, Los Angeles, and San Diego, you are sure to find an available and convenient attorney near you. 

Discover how our team can assist you. Contact us today, toll-free at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation with a skilled defense attorney.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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