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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent
,

v.

JAMES RAY MI TCHELL
,

Defendant and Appellant

. B 3 1 6173

Los Angeles County Super. Ct. No s

. MA077145, MA081739

APPEAL S from judgment s 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 Res pondent

.

_________________________2 In October 2019, d efendant 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 offic er. 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 sentence s in both o f t hose 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 proceed ings 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, Mitc hell 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 pl ea 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, 2020.3 On January 30, Mitchell didn’t appear in court

. T he court stated it had been “informed that the defendan t 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 probatio n 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 ma de

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

o fficers 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 un der 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 resolv e 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 t he evading (the high term doubled because of the strike), as well as six months on the misdemeanor, to be served concurrently with the felony.4

On the drug case, the court sentenced Mitchell to six years in the state prison (the midterm of three years doub led 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 presidi ng 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 re cord and found no arguable issues to raise on appeal. Counsel a sk ed 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 2 3
, 202 2 , 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 receiv ed 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.5 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 c ourts. (Stats. 2021, ch. 731, § 1.3; People v. Zabelle (2022) 80 Cal.App.5 th 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 circumsta nces 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 Assem bly 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

trau ma, 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 consi der the defendant’s prior convictions based on a certified record of conviction without submitting those prior convictions to a jury. (§ 1170, subd. (b)(3).)6

retroactively to cases not yet final, including Mitchell’s. ( Zabelle
, supra , 80 Cal.App.5 th at pp. 1108

- 1109; People v. Flores (2022)
73 Cal.App.5 th 1032, 1039 ( Flores ) .) However, the Attorney General contends Mitchell is not entitled to relief because he agreed with the People to a negotia ted 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) the refore
do not apply. Putting aside this argument for a moment, i n 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 5 3 when he evaded the police. Nothing in the record

—

or in Mitchell’s opening or reply briefs

— suggests he has experienced psychological or physic al 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 impos e d 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 C al.App.5 th 10517

( Mitchell ) , review granted Dec. 14, 2022, S277314

. There, police arrested the defendant Su nee Mitchell for a number of crimes after s he sped away from a police car, ran a red light, then drove toward and almost hit the police car. H er blood alcohol content (BAC) , when tested, was more than twice the legal limit. Mitchell entered into a plea a greement with the prosecution. Sh e 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 C al.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 Mitc hell 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 ple a 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 sentenc ed appellant according to the terms of the plea agreement. . . . The trial8 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, appel lant knowingly waived her rights to both a jury trial and court trial. Therefore, the concern raised
in Cunningham v. California [(2007) 54 9 U.S. 270,] 293 that a defendant’s Sixth Amendment rights are violated when aggravating facts to support an upper t erm sentence are not found by a jury beyond a reasonable doubt does not exist here.” ( Id

. at p. 1059 .)
The Mitchell court noted , “S enate B ill 567’s legislative history supports our conclusion.” ( Mitchell
, supra , 83 Cal.App.5th at p. 1059 .) The court als o drew a distinction between People v. Brooks (2020) 58 Cal.App.5 th 1099 and Flores
, supra , 73 Cal.App.5 th 1032. ( Mitchell , at pp. 1057

- 1058.) Brooks concerned section 1170.91, which mandates consideration of trauma resulting from military service as a m itigating factor when a court exercises determinate sentencing discretion. ( Brooks , at pp. 1103

- 1104.) The Brooks court held that, while that statute applied retroactive ly to not

- yet

- final cases, relief

was unavailable where the court had imposed a sente nce 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 w hile otherwise leaving the agreement intact, ‘ nor may the9 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 i ts discretion in choosing the midterm

. ( Flores
, supra , 73 Cal.App.5th at p p

. 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. 103 8

- 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, Senat e Bill 567 does not entitle Mitchell to relief. ( Cf. People

v. Berdoll (2022) 85 Cal.App.5 th 159 [declining to remand for resentencing under Senate Bill 567 where defendant pleaded10

to a number of counts of child pornography after court gave indicated sen tence] ; People v. King (2020) 52 Cal.App.5 th 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].) DISP OSITION We affirm the judgment s.

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.