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Filed 10/13/23 P. v. Mitchell CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

JAMES CHESTER MITCHELL,

Defendant and Appellant.

C097390

(Super. Ct. No. CRF21-00854)

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. 

Defendant now contends 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) limit the court’s ability to impose an upper term 
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sentence even when defendant agreed to it as part of a stipulated sentence. We affirm the 

judgment.

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 

different case, 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. 
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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.)

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 
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a change in law that took effect on January 1, 2022. Accordingly, no certificate of 

probable cause was required.1

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. The 

People submit, however, that amended section 1170 does not apply where a trial court 

imposes a stipulated sentence. 

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 The People argue that because defendant re-stipulated to the sentence after Senate Bill 

No. 567 (Stats. 2021, ch. 731, § 1.3) went into effect, Stamps does not apply. But Stamps

says a certificate is not required when the claim “does not challenge [the] plea as 

defective when made.” (People v. Stamps, supra, 9 Cal.5th at p. 696.) Because 

defendant first agreed to his plea prior to Senate Bill No. 567 going into effect, the most 

faithful application of Stamps is to find that a certificate of probable cause is not required. 
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Our Supreme Court is now poised to resolve this question, having granted review 

in People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted December 14, 2022, 

S277314 (Mitchell). In the meantime, we agree with the People for the reasons set forth 

in Mitchell. “[A] stipulated plea agreement ‘gave 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. 1058, quoting People v. Brooks (2020) 58 Cal.App.5th 1099, 

1109.) “ ‘When a court accepts a plea bargain, the court must impose a sentence within 

the limits of that bargain. [Citations.] Thus, a court may not modify the terms of a plea 

agreement while otherwise leaving the agreement intact, “nor may the court effectively 

withdraw its approval by later modifying the terms of the agreement it had approved.” ’ ” 

(Mitchell, at pp. 1057-1058, review granted, quoting Brooks, at pp. 1106-1107.) When 

the trial court sentenced defendant to the upper term pursuant to the stipulated plea 

agreement, “[t]he court had no opportunity to exercise any discretion in deciding whether 

the imposition of the upper, middle, or lower term would best serve ‘the interests of 

justice’ under former section 1170, subdivision (b).” (Mitchell, at p. 1058, review 

granted.)

“[A]mended section 1170, subdivision (b)(1) states that where an offense provides 

for a sentencing triad, the trial court ‘shall, in its sound discretion, order imposition of a 

sentence not to exceed the middle term except as otherwise provided in paragraph (2).’ ” 

(Mitchell, supra, 83 Cal.App.5th at p. 1058, review granted.) “This language indicates 

that the statute was not intended to apply to sentences imposed pursuant to a stipulated 

plea agreement, as the trial court lack[ed] discretion to select the sentence in the first 

place.” (Ibid., review granted.) There was thus “no occasion for the trial court to find 

any aggravating facts in order to justify the imposition of an upper term at sentencing.” 

(Id. at p. 1059, review granted; see also People v. Sallee (2023) 88 Cal.App.5th 330, 338, 

review granted Apr. 26, 2023, S278690 [when “the court imposed a stipulated sentence 

pursuant to a negotiated plea agreement . . . the court’s discretion was limited to 
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approving or rejecting the bargain . . . [and] [t]he court did not exercise discretion to 

select between the lower, middle, or upper term based on any aggravating or mitigating 

circumstances”].)

Accordingly, we reject defendant’s claim that the recent amendments to section 

1170 apply to his stipulated sentence.

DISPOSITION

The judgment is affirmed. 

 

HULL, J.

We concur:

 

EARL, P. J.

 

ROBIE, J.