Full Opinion

Filed 11/5/26 P. v. Mitchell CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ---- THE PEOPLE, C097390 Plaintiff and Respondent, (Super. Ct. No. CRF21-00854) v. OPINION ON TRANSFER JAMES CHESTER MITCHELL, Defendant and Appellant. Defendant James Chester Mitchell pleaded no contest to assault with a deadly weapon. After failing to complete a residential treatment program, the trial court imposed the upper-term sentence stipulated to as part of defendant’s plea agreement. On appeal, defendant argued that the matter must be remanded for a new sentencing hearing because the changes to Penal Code section 1170 made by Senate Bill No. 567 (2021- 2022 Reg. Sess.) (Senate Bill No. 567) limited the court’s ability to impose an upper term sentence even when defendant agreed to it as part of a stipulated sentence. In our prior 1 opinion, we rejected defendant’s claim 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. Having done so, we now conclude that remand is appropriate. We reverse the judgment and remand the matter to the trial court for further proceedings, as described in this opinion. FACTS AND HISTORY OF THE PROCEEDINGS On April 3, 2021, defendant had an altercation with his mother’s roommate during which the roommate got hit in the head with a baseball bat. Defendant was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (statutory section citations that follow are found in the Penal Code unless otherwise set forth) and failure to appear (§ 1320.5). As to both offenses, it was alleged that defendant suffered a prior strike conviction. (§§ 667, 1170.12.) As to the assault with a deadly weapon, it was further alleged that defendant had a prior serious felony conviction. (§ 667, subd. (a).) And as to the failure to appear, an enhancement was further alleged for committing a new felony offense while on bail (§ 12022.1). On October 8, 2021, defendant pleaded no contest to assault with a deadly weapon and admitted one serious prior felony conviction. The plea agreement granted defendant an opportunity to complete a one-year residential treatment program. If unsuccessful, defendant agreed to be sentenced to the upper term of four years, which would be doubled to eight years based on the prior strike. Under the agreement, the sentencing court would retain discretion to impose an additional five years for the prior serious felony. Defendant failed to report to the residential program as ordered. After being given an additional opportunity to enter the program, he left after only one day. The trial court issued a warrant for his arrest. In exchange for the People dismissing charges in a 2 different case, case No. CRF22-1991, defendant agreed to the trial court imposing the previously stipulated upper-term sentence and additionally stipulated to the five-year term for the prior serious felony. The trial court sentenced defendant accordingly. DISCUSSION I Certificate of Probable Cause The People first argue that this appeal must be dismissed because defendant did not obtain a certificate of probable cause from the trial court. “Penal Code section 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766.) “Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 379, citing Cal. Rules of Court, rule 8.304(b)(4)(B).) In certain contexts, “ ‘a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself.’ ” (People v. Stamps (2020) 9 Cal.5th 685, 694-695.) But in Stamps, our Supreme Court held that a certificate of probable cause was not required for a defendant to seek relief based on a change in law that benefited a defendant. (Id. at pp. 695-696.) The court explained: “[Defendant] is seeking retroactive application of a subsequently enacted ameliorative provision, which he contends has been incorporated into his plea agreement. We agree defendant was not required to obtain a certificate. His appellate claim does not constitute an attack on the validity of his plea because the claim does not challenge his plea as defective when made.” (Id. at p. 696.) 3 The same result is applicable here. Defendant does not argue that his plea agreement was defective when made in October 2021. Rather, he seeks relief because of a change in law that took effect on January 1, 2022. Accordingly, no certificate of probable cause was required. (See People v. Mitchell, supra, 19 Cal.5th at p. 749, fn. 7.) II Upper Term Sentencing Turning to the merits, defendant’s sole contention is that the trial court erred in sentencing him to the upper term because of the changes introduced by Senate Bill No. 567. Senate Bill No. 567, effective January 1, 2022, amended section 1170 to limit the trial court’s ability to impose an upper term determinate sentence by making the middle term the presumptive prison term unless specified circumstances exist. (§ 1170, subd. (b)(1)-(2); Stats. 2021, ch. 731, § 1.3.) A trial 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); Stats. 2021, ch. 731, § 1.3.) Notwithstanding the fact that defendant agreed to the upper term as part of his negotiated plea agreement, defendant argues that the trial court was required to rely on aggravating circumstances properly found pursuant to the amended section 1170. . In our prior opinion, we rejected this claim and agreed with the People that amended section 1170 does not apply where a trial court imposes a stipulated sentence. Our Supreme Court granted review in this matter and subsequently decided People v. Mitchell, supra, 19 Cal.5th 729. There, our Supreme Court held that “defendants ... 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.” (Id. at p. 735.) More 4 specifically, the 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(b)(2)’s provisions. But this is only true if the defendant, in entering the plea bargain, validly waives section 1170(b)’s requirements.” (Id. at p. 744.) Our Supreme Court directed that the matter be returned to the trial court, explaining that “[o]n remand, [the defendant] 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 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, [the defendant’s] remedy is to withdraw her assent to the bargain, in which case [the defendant’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.” (Id. at pp. 736-736.) The California Supreme Court subsequently transferred this matter back to us with directions to vacate our opinion and reconsider the cause in light of People v. Mitchell, supra, 19 Cal.5th 729. We vacated our prior decision. Neither party submitted additional briefing addressing “matters arising after the previous Court of Appeal decision in the cause.” (Cal. Rules of Court, rule 8.200(b)(2).) Applying People v. Mitchell, supra, 19 Cal.5th 729 to the present case, we conclude that remand to the trial court is appropriate to permit defendant to pursue relief under the new benefit that Senate Bill No. 567 confers. On remand, defendant may either waive or invoke the requirements of section 1170, subdivision (b). If he reaffirms his acceptance of the plea bargain and enters a waiver of section 1170, subdivision (b)’s requirements, the court shall reinstate the original sentence as negotiated by the parties. If he declines to enter that waiver, in lieu of further proceedings the parties may agree to 5 modify the existing plea agreement to specify a middle term sentence for his conviction of assault with a deadly weapon, doubled under the Three Strikes law. If the trial court also accepts the modification, it shall sentence defendant accordingly. If no such agreement is reached and approved, defendant’s remedy is to withdraw his assent to the bargain. In that case the trial court shall set aside the plea, the matter shall proceed as to defendant as if no plea had been entered, and the cases shall be set for trial. At that point the parties may, of course, renegotiate a disposition if they choose. DISPOSITION The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. /s/ HULL, J. We concur: /s/ EARL, P. J. /s/ ROBIE, J. 6