Filed 2/1/23 P. v. Mitchell CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES RAY MITCHELL,

Defendant and Appellant.

B316173

Los Angeles County

Super. Ct. Nos.

MA077145,

MA081739

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.

_________________________
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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 
8

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.