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Filed 8/30/24 P. v. Henry CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and 

Respondent,

v.

JAMES JAY HENRY, II,

Defendant and 

Appellant.

 A168133

 (Solano County

 Super. Ct. No. FCR323094)

This case returns to us after a remand for resentencing in 

light of amendments to Penal Code1 section 1170, subdivision (b) 

(section 1170(b)) that became effective after the trial court 

sentenced defendant pursuant to a plea agreement for a specified 

term. (People v. Henry (May 11, 2022, A164012), [nonpub. opn.].) 

Defendant contends that another remand is necessary because 

the trial court failed to comply with the remittitur directing it to 

resentence him in accordance with the amended statute and 

imposed upper term sentences that did not satisfy the statutory 

requirements. We find reversible error and remand for further 

proceedings.

1 All further statutory references are to the Penal Code.
2

BACKGROUND

The Prior Appeal

In September 2021, pursuant to a negotiated disposition, 

defendant pleaded guilty to one count of voluntary manslaughter 

(§ 192, subd. (a)), with an enhancement for personal use of a 

firearm (§ 12022.5), in exchange for a stipulated sentence of 21 

years. The trial court sentenced defendant according to the plea 

agreement to 21 years in prison; the sentence consisted of an 11-

year upper term for voluntary manslaughter and a 10-year upper 

term for the enhancement.

Defendant appealed his sentence, arguing that he was 

entitled to resentencing because of amendments to section 

1170(b). (People v. Henry, supra, A164012.) Specifically, Senate 

Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) made the 

middle term the presumptive sentence for a term of 

imprisonment unless certain circumstances exist, and it required 

the imposition of the lower term in cases where a defendant’s 

youth or psychological, physical or childhood trauma related to 

abuse, neglect or sexual violence was a contributing factor to the 

commission of the offense, unless the court finds that the 

aggravating circumstances outweigh the mitigating 

circumstances such that imposition of the lower term would be 

contrary to the interests of justice. (Stats. 2021, ch. 731, §§ 1.3, 

3(c); § 1170(b)(1)–(3), (6).)

The Attorney General agreed that the amendments applied 

retroactively to defendant’s case because his judgment was not 

final (In re Estrada (1965) 63 Cal.2d 740), and that “ ‘the case 
3

should be remanded for the trial court to resentence defendant 

consistent with the changes made to Penal Code section 1170.’ ” 

(People v. Henry, supra, A164012.)

The parties also agreed that People v. Stamps (2020) 

9 Cal.5th 685, 707 (Stamps) governed defendant’s resentencing 

hearing, and we accepted their concession. (People v. Henry,

supra, A164012.) We stated, “Accordingly, if the trial court, 

having considered the permissible factors under the amended 

law, again imposes the upper-term sentence, defendant’s 

sentence would stand. If the court indicates that application of 

the permissible factors would not support imposition of the 

upper-term sentence, the prosecutor may then either agree to 

modify the bargain to reflect the downward departure in the 

sentence, or choose to withdraw from the original plea 

agreement, and the court may choose to withdraw its prior 

approval of the plea agreement.” (Ibid.) “The judgment is 

reversed and remanded for further proceedings consistent with 

this opinion.” (Ibid.)

Proceedings on Remand

Our remittitur issued on July 13, 2022. In December 2022, 

defendant petitioned for resentencing, arguing that: (1) because 

no aggravating factors were charged, proven, or admitted, the 

court should resentence him to no more than the middle terms of 

six years for the offense and four years for the enhancement; and 

(2) due to his youth at the time of the offense, and his extensive 

childhood trauma, he should be resentenced to no more than six 

years (the lower terms). 
4

After defendant requested resentencing, the trial court 

requested briefing on People v. Mitchell (2022) 83 Cal.App.5th 

1051 (Mitchell), which held that amended section 1170(b) “was 

not intended to apply to sentences imposed pursuant to a 

stipulated plea agreement” because the court does not exercise 

sentencing discretion under section 1170(b) in selecting the 

lower, middle, or upper term. (Id. at p. 1059.) Defendant argued 

that Mitchell was not binding because the California Supreme 

Court granted review; the doctrine of the law of the case required 

the court to follow this Court’s decision; the court’s jurisdiction 

over the case on remand, as defined by the remittitur, prevented 

it from taking any action other than that in accordance with the 

remittitur; and res judicata and collateral estoppel barred the 

District Attorney from relitigating the issue. The District 

Attorney urged the trial court to follow Mitchell and to reimpose 

defendant’s 21-year sentence. 

At a hearing on May 4, 2023, the District Attorney again 

urged the court to follow Mitchell. The court responded: 

“THE COURT: No, that’s right. It seems to me the 

one issue that I came across, if you look at 1170(b)(2), 

the alternatives to a finding of an aggravated 

circumstance include a stipulation of an aggravated 

finding. And I guess this would be implied, 

theoretically, I did not lay a record establishing a 

stipulation to a specific fact that he plead to high 

term. I did take a stipulation as to a factual basis for 

the plea.

“So it seems to me that the combination of all of those 

things are consistent with the Mitchell analysis and 

everything else. We all basically agreed upon this 
5

outcome, which included that high term on the 

enhancement. 

“So, based on — I guess the other thing I meant to go 

back and look, but I did not, is whether or not a 53 —

12022.53 was actually filed. I think we did the high 

term on the .5, but I suppose we could have gotten to 

10 via 12022.53(b) had I invested any time or 

thought, which would not technically be a high term. 

“But in light of all of those things, it seems to me that 

[defendant] made a bargain and that everyone’s 

entitled to the benefit of the bargain. I think there’s 

a reasonable factual basis for that bargain. 

“So, I’m going to deny any further relief, find that the 

sentence, as imposed, should stand. Probably all I 

need to do.” 

The District Attorney agreed with the court’s comments, 

and the court continued, “That’s probably all I need to do. I don’t 

think I need to resentence him. I think it was sent back on 

remitter [sic] for me to consider whether or not I should 

resentence. So I guess the order can say I’m denying any request 

to resentence and finding that the sentence, as imposed, was 

agreed upon and that there was a factual basis for it. I think 

that’s all I need to do. 

Defense counsel disagreed, remarking that this Court 

reversed the judgment. She stated, “I think the Court does have 

to resentence him.” The trial court then reviewed this Court’s 

prior opinion:

“THE COURT: It says: ‘Accordingly, if the trial 

court, having considered the permissible factors 

under the amended law and imposes the upper term 

sentence, the defendant’s sentence would stand. 
6

“ ‘If the Court indicates the application of the 

permissible factors would not support imposition of 

the upper-term sentence, the prosecutor may then, 

again, either agree or modify the bargain to reflect 

the downward departure in the sentence or choose to 

withdraw from the initial plea agreement.’

“So, I guess let’s — so I assume by saying ‘allow it to 

stand’, I suppose if I need to make an additional 

factual record, I find based on these facts, the 

manner in which the firearm played a substantially 

significant role in the totality of the circumstances 

resulting in the death of another human being, in my 

mind would be sufficient to support a high term. But, 

again, I actually think, and I don’t recall [the] cases 

cited in the remitter [sic] going there, it seems to me 

that under 1170(b)(2), by stipulating to a factual 

basis for an agreed upon sentence, everyone is 

stipulating to that finding. Is I think how I would 

interpret it. I hope I did that right. If not, you can 

run it up the flagpole, again, see if I’ve done 

something wrong.”

Defendant timely appealed. 

DISCUSSION

Defendant’s overarching claim on appeal is that the trial 

court’s resentencing decision cannot stand because permissible 

aggravating circumstances do not justify the imposition of an 

upper term sentence under section 1170(b)(2). He frames his 

challenge alternatively, arguing that remand is required either 

because the trial court impermissibly followed Mitchell or 

because it failed to comply with the remittitur and consider 

whether permissible factors under the amended law justify the 

imposition of the upper-term sentence. The Attorney General 
7

responds that the court did not disobey the remittitur, or, 

alternatively, that we should adopt Mitchell and reject our prior 

opinion under the change in controlling law exception to the law 

of the case doctrine.

As set forth below, we hold that, although the trial court 

appears to have followed our order to apply amended section 

1170(b)(2), it erroneously concluded that defendant’s 2021 plea 

agreement satisfied the requirements of the statute and that the 

21-year upper term sentence should therefore stand. In other 

words, the court followed our direction, but it erred in applying 

the applicable law.2 We also adhere to the law of the case 

doctrine.

I. Section 1170(b) and Pleas with Stipulated Sentences

“Effective January 1, 2022, section 1170(b) was amended by 

Senate Bill 567 ‘to make the middle term the presumptive 

sentence for a term of imprisonment’ unless aggravating 

circumstances stipulated to by the defendant or proved true 

beyond a reasonable doubt justify imposition of an upper term. 

[Citations.]

“Specifically, current section 1170, subdivision (b)(1) states: 

‘When a judgment of imprisonment is to be imposed and the 

statute specifies three possible terms, the court shall, in its sound 

discretion, order imposition of a sentence not to exceed the 

middle term, except as otherwise provided in paragraph (2).’

2 Defendant also argues that reversal is required under the 

doctrines of judicial estoppel and collateral estoppel. Given our 

disposition, we need not address these arguments.
8

“Section 1170, subdivision (b)(2) (section 1170(b)(2)) 

provides: ‘The 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.’ The trial court may also consider 

‘the defendant’s prior convictions in determining sentencing 

based on a certified record of conviction without submitting the 

prior convictions to a jury.’ ” (People v. De La Rosa Burgara

(2023) 97 Cal.App.5th 1054, 1060–1061 (De La Rosa Burgara).)

“Further, section 1170, subdivision (b)(6) (section 

1170(b)(6)) provides ‘the opportunity for a low-term sentence 

under specified circumstances, including where a defendant was 

a “youth” as defined [by] section 1016.7, subdivision (b) at the 

time of the offense and the defendant’s youth was a contributing 

factor to the offense, unless the court finds that imposition of the 

low term would be contrary to the interests of justice.’ ” (De La 

Rosa Burgara, supra, 97 Cal.App.5th at p. 1061.)

The Courts of Appeal are currently divided on the question 

of whether the amendments enacted by Senate Bill 567 afford 

any relief to defendants who entered into plea agreements with 

stipulated sentences before Senate Bill 567 became effective, and 

the issue is pending before our Supreme Court. (Compare De La 

Rosa Burgara, supra, 97 Cal.App.5th at p. 1063, review granted 

Feb. 21, 2024, S283452 [defendant entitled to remand], People v. 
9

Todd (2023) 88 Cal.App.5th 373, 381–382, review granted Apr. 

26, 2023, S279154 [same], and People v. Fox (2023) 90 

Cal.App.5th 826, 831, 835 (Fox) [same] with Mitchell, supra,

83 Cal.App.5th at pp. 1057–1059, review granted Dec. 14, 2022, 

S277314 [defendant not entitled to remand] and People v. Sallee

(2023) 88 Cal.App.5th 330, 340–341 [same], review granted 

Apr. 26, 2023, S278690.)

II. The Trial Court Incorrectly Applied Section

1170(b)(2)

Initially, the parties dispute whether the trial court 

followed the remittitur and applied section 1170(b) as amended 

by Senate Bill 567. 

After the remittitur, “the trial court is revested with 

jurisdiction of the case, but only to carry out the judgment as 

ordered by the appellate court.” (People v. Dutra (2006) 

145 Cal.App.4th 1359, 1366.) “ ‘Where a reviewing court reverses 

a judgment with directions . . . the trial court is bound by the 

directions given and has no authority to retry any other issue or 

to make any other findings. Its authority is limited wholly and 

solely to following the directions of the reviewing court.’ ” (Id. at 

p. 1367.) Any judgment rendered contrary to the directions is 

void. (Ibid.) When the reviewing court remands the matter for 

further proceedings, “its directions must be read in conjunction 

with the opinion as a whole.” (Ayyad v. Sprint Spectrum, L.P. 

(2012) 210 Cal.App.4th 851, 859.) We review de novo whether 

the trial court has correctly interpreted our opinion. (Ibid.)
10

Our remittitur stated, “The judgment is reversed and 

remanded for further proceedings consistent with this opinion.” 

(People v. Henry, supra, A164012.) Our opinion summarized that 

defendant claimed entitlement to resentencing based on 

amendments to section 1170(b), and the Attorney General agreed 

that those amendments applied retroactively and “ ‘the case 

should be remanded for the trial court to resentence defendant 

consistent with the changes made to [section 1170(b)].’ ” (People 

v. Henry, supra, A164012.) We set forth directions for the 

resentencing proceeding, stating that the court should consider 

“permissible factors under the amended law” in determining 

whether to impose the upper-term sentence; if the court found 

that consideration of the permissible factors would not support 

imposition of the upper-term sentence, the prosecutor could agree 

to modify the bargain or choose to withdraw from the original 

plea agreement; and the trial court could choose to withdraw its 

prior approval of the plea agreement. (Ibid.) 

Here, the trial court did not disobey the remittitur. The 

prosecutor urged the trial court to follow Mitchell, and the court 

did mention Mitchell at the hearing. However, the court also 

acknowledged the new requirements for imposing the upper term 

under section 1170(b)(2), observing that the statute was satisfied 

where a defendant stipulates to the existence of aggravating 

circumstances. The court found that such a stipulation was 

implied in this case, and the court announced that it was 

interpreting section 1170(b)(2) to mean that defendant’s 2021 

stipulation supported the imposition of the upper term under the 
11

statute. Read as a whole, the record shows that the court 

followed the directions of our remittitur by attempting to 

interpret and apply section 1170 as amended by Senate Bill 567.3

Nonetheless, remand is required because the trial court 

erred in finding that section 1170(b)(2) was satisfied based on 

defendant’s 2021 plea and his implicit stipulation “to the 

existence of aggravating circumstances by agreeing to the upper 

term.” (Fox, supra, 90 Cal.App.5th at p. 835.) Senate Bill 567 

introduced new requirements for the imposition of the upper 

term — that the finder of fact determine the existence of facts 

underlying the aggravating circumstances or that there be a 

stipulation as to the existence of such facts, and that the court 

find that those circumstances in aggravation justify the 

imposition of a term of imprisonment exceeding the presumptive 

middle term. (§ 1170(b)(2)). As Fox explained, “[Defendant] 

entered the plea agreement . . . before Senate Bill No. 567 altered 

the requirements for imposing the upper term, and his 

agreement to that term cannot be considered an admission that 

sufficient aggravating circumstances exist.” (Fox, at p. 835.)

Finally, we do not find harmless error.4 The trial court 

relied significantly on its erroneous determination that 

defendant’s 2021 plea was both an implicit stipulation that 

3 We note that we would reach the same disposition if, as 

defendant suggests, we were to interpret the trial court’s actions 

as disobeying our prior opinion and remittitur in favor of 

Mitchell. 

4 The Attorney General does not argue harmless error. 

This silence appears to be an implicit concession that the error 

was not harmless. 
12

circumstances in aggravation justified the imposition of a term of 

imprisonment exceeding the presumptive middle term and an 

implicit stipulation to the existence of facts underlying the 

circumstances in aggravation. The error thus affected the court’s 

finding under section 1170(b)(2) that circumstances in 

aggravation justified deviation from the statute’s presumptive 

middle term, and it seems reasonably probable the court would 

have rendered a more favorable ruling without the error. (People 

v. Watson (1956) 46 Cal.2d 818, 836.)5

III. The Law of the Case Doctrine Applies

We next turn to the Attorney General’s claim that we 

should adopt Mitchell and Sallee and reject our prior opinion 

because of the “unjust decision exception” (People v. Stanley

(1995) 10 Cal.4th 764, 787) to the law of the case doctrine. 

“ ‘ “The doctrine of the law of the case is this: That where, 

upon an appeal, the [reviewing] court, in deciding the appeal, 

states in its opinion a principle or rule of law necessary to the 

decision, that principle or rule becomes the law of the case and

must be adhered to throughout its subsequent progress, both in 

the lower court and upon subsequent appeal, and, as here 

assumed, in any subsequent suit for the same cause of action, 

and this although in its subsequent consideration this court may 

5 We acknowledge that the court also said that use of the 

firearm was sufficient to impose the upper term in this case. 

However, the court’s subsequent statements emphasizing what it 

“actually” believed about the import of defendant’s 2021 plea 

leave us with serious doubt as to whether the error affected the 

result.
13

be clearly of the opinion that the former decision is erroneous in 

that particular.” ’ ” (People v. Stanley, supra, 10 Cal.4th at 

p. 786.)

“The principal reason for the doctrine is judicial economy. 

‘Finality is attributed to an initial appellate ruling so as to avoid 

the further reversal and proceedings on remand that would result 

if the initial ruling were not adhered to in a later appellate 

proceeding.’ [Citation.] Because the rule is merely one of 

procedure and does not go to the jurisdiction of the court 

[citations], the doctrine will not be adhered to where its 

application will result in an unjust decision, e.g., where there has 

been a ‘manifest misapplication of existing principles resulting in 

substantial injustice’ [citation], or the controlling rules of law 

have been altered or clarified by a decision intervening between 

the first and second appellate determinations [citation]. The 

unjust decision exception does not apply when there is a mere 

disagreement with the prior appellate determination.” (People v. 

Stanley, supra, 10 Cal.4th at pp. 786–787, italics added.)

Here, the law of the case doctrine applies, and the unjust 

decision exception is inapplicable. Our prior opinion necessarily 

determined that Senate Bill 567 afforded defendant, who entered 

into a plea agreement with a stipulated sentence before the bill 

became effective, the ability to seek relief on remand. (People v. 

Henry, supra, A164012.) Mitchell and Sallee disagreed with this 

determination, finding that defendants who agreed to a 

stipulated sentence before the effective date of Senate Bill 567 

are not entitled to any relief. (Mitchell, supra, 83 Cal.App.5th at 
14

pp. 1057–1059; People v. Sallee, supra, 88 Cal.App.5th at 

pp. 340–341.) However, this disagreement does not constitute a 

change in controlling law sufficient to invoke the unjust decision 

exception to the law of the case doctrine. (See People v. Stanley, 

supra, 10 Cal.4th at p. 787 [stating unjust decision exception 

requires change in controlling law].)6

Accordingly, we conclude that a remand is required in this 

case. On remand, the trial court must determine whether the 

upper term can be imposed in compliance with section 1170(b) 

and Fox — meaning that, except as to prior convictions based on 

a certified record of conviction (§ 1170(b)(3)), the upper term may 

be based only on aggravating circumstances that have been 

6 The Attorney General also relies on People v. Brooks 

(2020) 58 Cal.App.5th 1099 (Brooks), but this reliance is 

misplaced. In Brooks, a panel of this division held that a 

defendant serving a stipulated sentence was not entitled to 

resentencing under section 1170.91. (Brooks, at p. 1109.) Section 

1170.91 requires consideration of trauma resulting from military 

service as a mitigating factor when a court exercises determinate 

sentencing triad discretion. (Brooks, at p. 1104.) But section 

1170(b) does not merely add specific factors to be considered 

among many in the trial court’s sentencing determination. In 

Brooks, the plea bargain resulted in a sentence that was within 

the boundaries of the Penal Code’s sentencing structure. Here, 

the imposition of the aggravated term is outside the discretion of 

the sentencing court unless section 1170(b)’s prerequisites are 

met or waived because the aggravated term cannot be imposed 

absent the court’s finding of those circumstances. (§ 1170(b)(1)–

(3); People v. Todd, supra, 88 Cal.App.5th at p. 379.) Further, the 

Attorney General did not raise Brooks in the prior appeal and 

does not show that any exception to the law of the case doctrine is 

applicable.
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(1) stipulated to by defendant independent of his 2021 plea to the 

upper term, or (2) found true beyond a reasonable doubt at trial 

by the jury or by the judge in a court trial if defendant agrees to a 

court trial. If the trial court, having considered the requirements 

and permissible factors under section 1170(b) (including section 

1170(b)(6) should defendant raise its provisions on remand), 

again imposes the upper-term sentence, defendant’s sentence 

would stand. If the court indicates that consideration of the 

requirements and permissible factors would not support 

imposition of the upper-term sentence, the prosecutor may then 

either agree to modify the bargain to reflect the downward 

departure in the sentence, or choose to withdraw from the 

original plea agreement, and the court may choose to withdraw 

its prior approval of the plea agreement. 

We note that our disposition and our prior opinion are 

consistent with section 1016.8, which codified the rule that the 

fact that “the parties enter into a plea agreement does not have 

the effect of insulating them from changes in the law that the 

Legislature has intended to apply to them,” and clarified that any 

“provision of a plea bargain that requires a defendant to 

generally waive future benefits of legislative enactments, 

initiatives, appellate decisions, or other changes in the law that 

may retroactively apply after the date of the plea is void as 

against public policy.” (§ 1016.8, subd. (a)(1), (b); Stamps, supra,

9 Cal.5th at p. 705.)
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DISPOSITION

The judgment is reversed and remanded for further 

proceedings consistent with this opinion.

BROWN, P. J.

WE CONCUR:

STREETER, J.

DOUGLAS, J.

People v. Henry (A168133)

 Judge of the Superior Court of California, County of 

Contra Costa, assigned by the Chief Justice pursuant to article 

VI, section 6 of the California Constitution.