Full Opinion

Filed 11/10/26 P. v. Toschi CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) THE PEOPLE, C095977 Plaintiff and Respondent, (Super. Ct. Nos. 19CF03379 v. & 21CF04876) MICHAEL KEFFE SHELLEY TOSCHI, OPINION ON TRANSFER Defendant and Appellant. Defendant Michael Keffe Shelley Toschi pleaded no contest to bringing contraband into a jail, and the trial court placed him on probation. Defendant subsequently pleaded no contest in two separate cases. The trial court terminated defendant’s probation and sentenced him according to the stipulated sentence to which the parties had agreed, including an upper term in the first case. On appeal, defendant argues he is entitled to remand for the retroactive application of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill No. 567),1 which amended Penal Code section 11702 to limit the trial court’s discretion 1 Senate Bill No. 567 was enacted after Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5) and incorporated Assembly Bill No. 124’s amendments to section 1170. (Stats. 2021, ch. 731, § 3(c).) 2 Undesignated statutory references are to the Penal Code. 1 to impose the upper term (§ 1170, subd. (b)(1), (2)) and anything greater than the lower term if certain circumstances contributed to the commission of the offense, including where the offender is under 26 years old at the time of the offense. (§ 1170, subd. (b)(6).) In our prior opinion, we rejected defendant’s claims and affirmed the judgment. The California Supreme Court granted review and transferred the matter back to us with directions to vacate our opinion and reconsider the cause in light of People v. Mitchell (2026) 19 Cal.5th 729 (Mitchell). Having done so, we now conclude that reversal and remand for further proceedings is appropriate. FACTUAL AND PROCEDURAL BACKGROUND A. Sacramento County Superior Court Case No. 19CF03379 (case No. 3379) In May 2019, defendant drank alcohol, smoked marijuana, and fell asleep in his car for two hours. As he was driving home, he hit two parked cars. Scared, he fled the scene. Defendant told a responding police officer that his name was “Eric Smith” and produced a driver’s license with the same name. After defendant was arrested and placed in a holding area at the local police department, he dropped some benzodiazepine pills on the floor and crushed them with his feet. Defendant was 24 years old at the time. In July 2019, defendant was charged with bringing contraband into a jail (§ 4573, subd. (a)—count 1); felony attempted false personation (§§ 664, subd. (a), 529, subd. (a)(3)—count 2); and misdemeanor hit-and-run driving resulting in property damage. (Veh. Code, § 20002, subd. (a)—count 3.) As to count 1, it further was alleged defendant suffered a prior strike (§§ 667, subds. (b)-(j), 1170.12) and had served a prior prison term. (§ 667.5, subd. (b).) 2 In July 2020, defendant pleaded no contest to counts 1 and 3. The remaining allegations were dismissed with a Harvey3 waiver. During the October 2020 sentencing hearing, the prosecutor argued the upper term was appropriate because defendant was on parole at the time of the offenses, had previously committed four prior felonies and five prior misdemeanors, and had never successfully completed a grant of probation. In addition, with respect to the current charges, defendant committed multiple hit-and-run offenses, lied to the police officer, and tried to destroy drugs while he was in custody. Defense counsel responded that defendant suffered from substance abuse and had been trying to destroy the drugs rather than smuggle them into the jail. In addition, defendant had completed outpatient drug treatment and had been sober for nearly one year, and he now had steady employment. The trial court ordered three years of probation and imposed various fines and fees. B. Sacramento County Superior Court Case No. 21CF04876 (case No. 4876) In September 2021, defendant was charged with forgery of a prescription (Bus. & Prof. Code, § 4324, subd. (a)—count 1); possession of a false prescription blank (Bus. & Prof. Code, § 4325, subd. (a)—count 2); and misdemeanor possession of a controlled substance. (Health & Saf. Code, § 11375, subd. (b)(2)—count 3.) With respect to count 1, it further was alleged that defendant suffered a prior strike. (§§ 667, subds. (b)-(j), 1170.12.) In December 2021, defendant pleaded no contest to count 1. The remaining allegations were dismissed with a Harvey waiver. C. Sacramento County Superior Court Case No. 21CF05778 (case No. 5778) In November 2021, defendant was charged with child abuse (§ 273a, subd. (a)— count 1); felony falsifying a registration card, license, license plate, permit, or evidence 3 People v. Harvey (1979) 25 Cal.3d 754. 3 of vehicle ownership (Veh. Code, § 4463, subd. (a)(1)—count 2); and misdemeanor driving under the influence. (Veh. Code, § 23152, subd. (f)—count 3.) As to counts 1 and 2, it further was alleged defendant suffered a prior strike. (§§ 667, subds. (b)-(j), 1170.12.) In December 2021, defendant pleaded no contest to count 3. The remaining allegations were dismissed with a Harvey waiver. D. Sentencing on all three cases In exchange for his pleas in case Nos. 4876 and 5778, the parties stipulated to a four-year eight-month aggregate prison sentence in all three cases, including an upper term of four years in case No. 3379. In March 2022, the trial court found defendant had violated probation in case No. 3379. The court then sentenced defendant as follows: (1) in case No. 3379, the upper term of four years for count 1 (§ 4573, subd. (a)), plus six months concurrent for count 3 (Veh. Code, § 20002, subd. (a)); and (2) in case No. 4876, eight months (or one-third the midterm) consecutive for count 1. (Bus. & Prof. Code, § 4324, subd. (a).) The court also imposed various fines and fees. Defendant filed timely appeals from case Nos. 4876 and 3379. He did not request a certificate of probable cause in either appeal. DISCUSSION After defendant entered his plea, Senate Bill No. 567 came into effect and amended section 1170, subdivision (b), to require trial courts to impose no more than the middle term unless there are aggravating circumstances that have been (1) stipulated to 4 by the defendant; or (2) found true beyond a reasonable doubt by a jury or judge.4 (§ 1170, subds. (b)(1), (2).) In Mitchell, the California Supreme Court resolved the effect of section 1170, subdivision (b)’s middle term presumption 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 that were not final on appeal. (Mitchell, supra, 19 Cal.5th at p. 735.) Here, defendant neither stipulated to any aggravating facts nor did the prosecutor prove any. We therefore reverse the judgment because the facts relied on to justify the upper term in this global plea deal were not “stipulated to or proven beyond a reasonable doubt at a jury or court trial.” (Mitchell, supra, 19 Cal.5th at p. 735.) Defendant may reaffirm the bargain and waive the requirements now applicable under section 1170, subdivision (b), or he may withdraw his December 2021 plea and return the parties to a pre-plea posture, with the prosecution bearing its burden of proof. (Mitchell, at p. 749.) What he may not do, however, is unilaterally obtain a reduction of his agreed-upon upper term sentence in case No. 3379 to the middle term. (Ibid.) Given our conclusions, we need not reach defendant’s alternate argument that the upper term was improper because he was a youth at the time of the offense in case No. 3379. We also need not address whether the abstract of judgment incorrectly records defendant’s conviction in case 4 Given that the amendments to section 1170, subdivision (b), were in effect when defendant was sentenced, and defendant failed to object based on Senate Bill No. 567, he has arguably forfeited his challenges on appeal. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [“ ‘Claims of error relating to sentences “which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner” are waived on appeal if not first raised in the trial court’ ” (italics omitted)].) However, given Mitchell’s clear guidance, we will instead proceed to the merits. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 [a reviewing court may exercise discretion to review a forfeited claim, especially one that involves a legal question rather than a question of fact].) 5 No. 4876 for forgery of a prescription as a violation of Penal Code section 4324, subdivision (a), when he was actually convicted of violating DISPOSITION The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. \s\ KRAUSE, J. We concur: \s\ EARL, P. J. \s\ HULL, J. 6