Filed 2/1/23 P. v. Mitchell CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B316173
Plaintiff and Respondent, Los Angeles County
Super. Ct. Nos.
v. MA077145,
MA081739
JAMES RAY MITCHELL,
Defendant and Appellant.
APPEALS from judgments of the Superior Court of
Los Angeles County, Robert G. Chu, Judge. Affirmed.
Richard B. Lennon, 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, Noah P. Hill and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In October 2019, defendant and appellant James Ray
Mitchell pleaded to a drug charge, and admitted a prior strike,
for probation and drug court. Mitchell did not complete his drug
program or report to his probation officer. In July 2021, officers
arrested him for felony evading and driving under the influence.
Mitchell entered into an agreement with the People to resolve
both his new case and his probation violation. Mitchell now
appeals from his sentences in both of those cases, contending
remand is necessary in light of Senate Bill No. 567 (2020-2021
Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 124 (2021-
2011 Reg. Sess.) (Assembly Bill 124). We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The trial court proceedings
In September 2019, the People charged Mitchell with
the sale, offer to sell, or transportation of a controlled substance
(methamphetamine). The People alleged Mitchell had a prior
strike for kidnapping. (Case No. MA077145.) On October 2,
2019, Mitchell entered into a plea deal with the prosecution.
He pleaded no contest to the charge and admitted the prior strike
for drug court. Under the deal, if Mitchell successfully completed
his program, the court would strike the strike. If he didn’t, the
plea and admission would stand and the court could sentence
Mitchell to up to eight years.
In accordance with the plea agreement, on December 5,
2019, the court ordered Mitchell to enroll in an intensive
outpatient program at the Tarzana Treatment Center, to
remain in the program, and to report to court in person if he
left the program for any reason. The court set a progress report
for January 30, 2020.
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On January 30, Mitchell didn’t appear in court. The court
stated it had been “informed that the defendant has not been
reporting since he was release[d] to [the] intensive outpatient
program.” Accordingly, the court issued a no-bail bench warrant.
About 18 months later, on July 25, 2021, deputies on patrol
saw a motorcycle speed by. According to a probation officer’s
report, the motorcycle’s rider—later identified as Mitchell—
ran a stop sign and was weaving in and out of traffic lanes.
Officers tried to stop Mitchell but he ignored their lights and
siren. Mitchell continued to accelerate, then suddenly made
a sharp turn across all lanes of traffic and rode into the desert.
Eventually, Mitchell got off the motorcycle and “fled on foot.”
He threw items from his waistband onto the ground as he ran.
Deputies found Mitchell behind a tree. Mitchell told the
officers he’d been drinking and had smoked methamphetamine
about an hour before he rode his motorcycle. Officers found
a baggie of methamphetamine on the ground.
The People charged Mitchell with felony evading and
several misdemeanors, including driving under the influence of
alcohol and a drug. (Case No. MA081739.) Based on that arrest
and new filing, the court in Mitchell’s drug case recalled and
quashed the bench warrant.
On October 21, 2021, Mitchell entered into an agreement
with the People to resolve both matters. Mitchell pleaded
no contest to felony evading and misdemeanor driving under
the influence. He again admitted his strike prior. In accordance
with the parties’ agreement, the court sentenced Mitchell
to six years in the state prison for the evading (the high term
doubled because of the strike), as well as six months on the
misdemeanor, to be served concurrently with the felony.
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On the drug case, the court sentenced Mitchell to six years in
the state prison (the midterm of three years doubled because
of the strike), to be served concurrently with the evading case.
2. Proceedings in this court
Mitchell filed a notice of appeal in both cases, and we
appointed counsel to represent him on appeal. On December 6,
2021, the administrative presiding justice of this court ordered
that Mitchell’s appeal “is limited to issues that do not require
a Certificate of Probable Cause.” After examining the record,
Mitchell’s court-appointed counsel filed an opening brief stating
he had reviewed the entire record and found no arguable issues
to raise on appeal. Counsel asked this court independently to
review the record under People v. Wende (1979) 25 Cal.3d 436
(Wende). Counsel stated he had written to Mitchell to advise him
he was filing a Wende brief and Mitchell had the right to file a
supplemental brief. We also sent Mitchell a letter on March 23,
2022, telling him the same thing. The deadline of April 21, 2022
passed and we did not receive a supplemental brief from Mitchell.
On May 31, 2022, we received a one-paragraph
handwritten letter from Mitchell. Mitchell stated his counsel
had told him “to write a letter to the court of appeal letting them
know that SB 567 ap[p]l[ie]s to me and I would like to have my
hi[gh] term taken away.” On June 9, 2022, we granted leave
to file the letter. On June 21, 2022, we issued an order striking
the Wende brief, vacating the submission of the case, and calling
for briefing on what effect—if any—Senate Bill 567 may have
on this appeal. The matter has now been fully briefed.
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DISCUSSION
Mitchell contends we should remand both of his cases for
resentencing in light of Senate Bill 567 and Assembly Bill 124.
Senate Bill 567 amended Penal Code section 1170, subdivision
(b),1 to limit the sentencing discretion of trial courts. (Stats.
2021, ch. 731, § 1.3; People v. Zabelle (2022) 80 Cal.App.5th 1098,
1108 (Zabelle).) As amended, the statute generally requires a
court to “ ‘order imposition of a sentence not to exceed the middle
term,’ ” except where there are circumstances in aggravation
of the crime and the defendant either has stipulated to the facts
underlying those circumstances or a jury (or a judge in a court
trial) has found them true beyond a reasonable doubt. (§ 1170,
subd. (b)(2); Zabelle, at p. 1108.)2
Assembly Bill 124 amended section 1170, subdivision (b)(6)
to require the imposition of the low term if any of the following
“was a contributing factor in the commission of the offense”: the
defendant “has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence”; the defendant was a youth (defined as anyone
under the age of 26) when he or she committed the offense; or
the defendant had been the “victim of intimate partner violence
or human trafficking.” (Stats. 2021, ch. 695, § 5.1; § 1170,
subd. (b)(6)(A)-(C); § 1016.7, subd. (b).)
Courts have held, and the parties agree (as do we),
that these amendments to section 1170, subdivision (b) apply
1 References to statutes are to the Penal Code.
2 A sentencing court also may consider the defendant’s
prior convictions based on a certified record of conviction without
submitting those prior convictions to a jury. (§ 1170, subd.
(b)(3).)
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retroactively to cases not yet final, including Mitchell’s. (Zabelle,
supra, 80 Cal.App.5th at pp. 1108-1109; People v. Flores (2022)
73 Cal.App.5th 1032, 1039 (Flores).) However, the Attorney
General contends Mitchell is not entitled to relief because
he agreed with the People to a negotiated plea and a stipulated
sentence. So, the Attorney General argues, the trial court
had no discretion to choose among the three possible terms,
there was no sentencing choice now to be reconsidered, and
the amendments to section 1170, subdivision (b) therefore
do not apply.
Putting aside this argument for a moment, in Mitchell’s
drug case, the court did impose the middle term. The triad
for a violation of Health and Safety Code section 11379,
subdivision (a) is two, three, or four years. (Health & Saf. Code,
§ 11379, subd. (a).) Mitchell asserts Assembly Bill 124 also
requires remand so he can “be allowed to present evidence
of a factor that would mandate imposition of the lower term
sentence.” But Mitchell offers no hint—much less an offer
of proof—of what that “evidence” might consist. Mitchell
is not a youth: he was 51 when he committed the drug crime
and 53 when he evaded the police. Nothing in the record—
or in Mitchell’s opening or reply briefs—suggests he has
experienced psychological or physical trauma, or that he was
a victim of human trafficking or intimate partner violence.
(See § 1170, subd. (b)(6).) Accordingly, no remand is necessary
on Mitchell’s drug case.
As for Mitchell’s evading case, in which the court imposed
the upper term, the Attorney General’s contention has merit.
This case is remarkably similar to another recent case also
named Mitchell: People v. Mitchell (2022) 83 Cal.App.5th 1051
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(Mitchell), review granted Dec. 14, 2022, S277314. There, police
arrested the defendant Sunee Mitchell for a number of crimes
after she sped away from a police car, ran a red light, then
drove toward and almost hit the police car. Her blood alcohol
content (BAC), when tested, was more than twice the legal limit.
Mitchell entered into a plea agreement with the prosecution. She
pleaded no contest to reckless driving while evading an officer
and to driving with a BAC of .08 percent or more. Mitchell also
admitted a strike prior for robbery. (Id. at pp. 1054-1055.)
Mitchell and the prosecution agreed to a stipulated
sentence of six years in prison, calculated as the upper term
on the reckless driving charge, doubled because of the strike prior
(the sentence for driving with a BAC over the limit to be served
concurrently). (Mitchell, supra, 83 Cal.App.5th at p. 1055.)
Mitchell appealed, contending she was entitled to have
her sentence reduced to the middle term of two years, doubled
to four years based on the strike prior. The Attorney General
agreed Senate Bill 567 applied retroactively to Mitchell but
argued she was not entitled to relief because her sentence was
stipulated to, and imposed in accordance with a plea agreement.
(Mitchell, supra, 83 Cal.App.5th at p. 1056.) The appellate
court agreed:
“In the case where there is a stipulated plea
like here, there is no occasion for the trial court
to find any aggravating facts in order to justify
the imposition of an upper term at sentencing.
Appellant agreed to a term of six years
pursuant to a stipulated plea and the trial
court simply sentenced appellant according to
the terms of the plea agreement. . . . The trial
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court therefore did not exercise any discretion
under former section 1170, subdivision (b)
in selecting the lower, middle, or upper term.
Further, in entering into the plea, appellant
knowingly waived her rights to both a jury trial
and court trial. Therefore, the concern raised
in Cunningham v. California [(2007) 549 U.S.
270,] 293 that a defendant’s Sixth Amendment
rights are violated when aggravating facts to
support an upper term sentence are not found
by a jury beyond a reasonable doubt does not
exist here.” (Id. at p. 1059.)
The Mitchell court noted, “Senate Bill 567’s legislative
history supports our conclusion.” (Mitchell, supra, 83
Cal.App.5th at p. 1059.) The court also drew a distinction
between People v. Brooks (2020) 58 Cal.App.5th 1099 and
Flores, supra, 73 Cal.App.5th 1032. (Mitchell, at pp. 1057-1058.)
Brooks concerned section 1170.91, which mandates consideration
of trauma resulting from military service as a mitigating factor
when a court exercises determinate sentencing discretion.
(Brooks, at pp. 1103-1104.) The Brooks court held that, while
that statute applied retroactively to not-yet-final cases, relief
was unavailable where the court had imposed a sentence under
a stipulated plea agreement. (Id. at pp. 1106-1107.) The court
stated,
“When a court accepts a plea bargain, the court
must impose a sentence within the limits of
that bargain. . . . Thus, a court may not modify
the terms of a plea agreement while otherwise
leaving the agreement intact, ‘nor may the
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court effectively withdraw its approval by
later modifying the terms of the agreement
it had approved.’ ” (Ibid.)
“[A stipulated] plea agreement [gives] the court
no room to exercise discretion in the selection
of a low, middle or high term [under former
section 1170, subdivision (b)].” (Id. at p. 1109.)
In Flores, by contrast, the defendant—who was under
age 26 at the time of the offense—had pleaded open to the
court and the court had exercised its discretion in choosing
the midterm. (Flores, supra, 73 Cal.App.5th at pp. 1035-1037.)
The Flores court concluded the case should be remanded for the
trial court to consider whether the defendant was entitled to be
resentenced to the low term based on Senate Bill 567’s addition
of section 1170, subdivision (b)(6)(B). (Flores, at pp. 1038-1039.)
As noted, our Supreme Court has granted review in
Mitchell. Pending the high court’s decision in the case, it has
stated the appellate court’s opinion “may be cited” “for its
persuasive value.” (S277314.) Pending further guidance from
our high court, we continue to agree with the reasoning and
result in Mitchell. Here, as in Mitchell, Mitchell entered into
a plea agreement with the prosecution and the parties stipulated
to what the sentence would be. The trial court sentenced
Mitchell in accordance with that agreement and stipulation.
The court had no opportunity to exercise any discretion in
choosing the upper, middle, or lower term. For that reason,
Senate Bill 567 does not entitle Mitchell to relief. (Cf. People
v. Berdoll (2022) 85 Cal.App.5th 159 [declining to remand for
resentencing under Senate Bill 567 where defendant pleaded
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to a number of counts of child pornography after court gave
indicated sentence]; People v. King (2020) 52 Cal.App.5th 783,
786-787 [affirming denial of recall petition by veteran seeking
relief under section 1170.91, subdivision (b); trial court would
have no discretion on resentencing to depart from stipulated
sentence].)
DISPOSITION
We affirm the judgments.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
RICHARDSON (ANNE K.), J.
Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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