Full Opinion

Filed 11/4/26 P. v. Weldon CA2/6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B321956 (Super. Ct. No. 21CR00636) Plaintiff and Respondent, (Santa Barbara County) v. OPINION FOLLOWING DENNIS ANTHONY ORDER VACATING PRIOR WELDON, OPINION Defendant and Appellant. Dennis Anthony Weldon pleaded no contest to resisting arrest (Pen. Code,1 § 69, count 3) and attempted criminal threats (§§ 422, 664, count 4). Pursuant to a negotiated disposition, the trial court imposed a stipulated sentence of the upper term of three years for resisting arrest and four months for attempted criminal threats. Appellant was placed on probation, which he violated shortly thereafter. The trial court revoked probation and imposed the stipulated sentence. 1 All further statutory references are to the Penal Code. On appeal, appellant argued his sentence must be vacated and remanded for a new hearing because Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3), which amended section 1170, applied to his case. We previously affirmed the judgment. (People v. Weldon (Dec. 21, 2023, B321956) [nonpub. opn.].) Now, this matter is before us on transfer from our Supreme Court for reconsideration in light of People v. Mitchell (2026) 19 Cal.5th 729 (Mitchell). In Mitchell, our Supreme Court resolved the effect of section 1170, subdivision (b) on negotiated dispositions, holding that Senate Bill No. 567's amendments to the statute apply retroactively to sentences imposed pursuant to stipulated plea agreements in cases not final on appeal. (Mitchell, at p. 735.) In accordance with the directions from our Supreme Court, we vacated our earlier decision and permitted supplemental briefing from the parties. On October 7, 2026, the Attorney General filed a supplemental letter brief, explaining that remand is the proper remedy in light of Mitchell, supra, 19 Cal.5th 729. Appellant did not file a supplemental brief. Factual and Procedural Background Appellant was arrested for disturbing the peace at a veteran’s clinic. During the arrest, he refused to walk to the patrol car and threatened to kill not only the arresting sheriff’s deputy, but his family as well. During a search, deputies found a knife in appellant’s jacket pocket. In addition to the substantive offenses, it was alleged appellant had two prior strike convictions (§ 667, subds. (d)(1) & (e)(1)), was ineligible for probation (§ 1203, subd. (e)(4)), and had been convicted of a serious felony (§ 1170, subd. (h)(3)). 2 Pursuant to a negotiated plea agreement, the trial court imposed the upper term of three years on count 3 and one-third the midterm, or four months, on count 4. The sentence was suspended for a period of two years while appellant was on probation. One of the terms of appellant’s probation was that he abstain from alcohol. But two months later, sheriff’s deputies responded to a domestic dispute involving appellant. The deputies noticed appellant’s speech was slurred and his eyes were glassy. They arrested appellant and administered a preliminary alcohol screening test. Appellant’s blood alcohol content was 0.043. Following a hearing, the trial court found appellant violated the terms of his probation and imposed the previously suspended term of three years four months in state prison. Discussion Senate Bill No. 567 amended section 1170 such that the middle term is now the presumptive term of imprisonment. As amended, the statute provides that the trial court “shall, in its sound discretion, order imposition of a sentence not to exceed the middle term” unless 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)(1), (2); Stats. 2021, ch. 731, § 1.3.) As a general matter, Senate Bill No. 567's amendments to section 1170 apply retroactively to all nonfinal cases. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) More recently, our Supreme Court has held that the amendments to section 1170, 3 subdivision (b) also apply retroactively to stipulated upper term sentences imposed pursuant to plea agreements in cases not final on appeal. (Mitchell, supra, 19 Cal.5th at p. 735.) Thus, unless a defendant validly waived section 1170, subdivision (b)’s new requirements when he entered his plea, the judgment must be reversed and remanded for further proceedings. (Id. at pp. 735- 736, 744-745, 749.) Applying Mitchell’s guidance here, appellant has not validly waived the new requirements under amended section 1170, subdivision (b), because they did not yet exist at the time of his original sentencing. Accordingly, the proper remedy is to remand so that appellant may either waive or invoke section 1170, subdivision (b)’s requirements. If he chooses to reaffirm his acceptance of the original plea bargain and enters a new waiver of section 1170, subdivision (b)’s requirements, the trial court shall reinstate the original sentence as negotiated by the parties. If appellant declines to enter that waiver, the parties may agree to modify the existing plea agreement to a sentence that does not include an upper term. Absent a modified agreement and the trial court’s approval, appellant’s remedy is to withdraw his assent to the bargain, in which case the trial court shall set aside the plea, and “the ‘matter shall proceed . . . as if no plea had been entered.’ ” At that point, the parties remain free to renegotiate further if they so choose or proceed to trial. (See Mitchell, supra, 19 Cal.5th at pp. 735-736, 751-752.) Disposition The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion. 4 NOT TO BE PUBLISHED. YEGAN, J. I concur: CODY, P. J. BALTODANO 5 Brian E. Hill, Judge Superior Court County of Santa Barbara ______________________________ Christina J. Alvarez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, J. Michael Lehmann and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.