Filed 7/23/21 P. v. Mitchell CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY JEROME 

MITCHELL,

Defendant and Appellant.

B309107

(Los Angeles County 

Super. Ct. No. BA477472)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mildred Escobedo, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, 

for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

__________________________
2

Gregory Jerome Mitchell appeals from an order denying his 

petition to set aside his plea for assault with a firearm and to be 

resentenced under Penal Code section 1016.8. That statute 

generally invalidates as part of a plea agreement any agreement 

by the defendant to waive the benefit of future changes in the law 

to which the defendant would otherwise be entitled.1 His 

appointed counsel filed a brief pursuant to People v. Serrano 

(2012) 211 Cal.App.4th 496, raising no issues. Mitchell filed a 

supplemental brief arguing that by the terms of the plea 

agreement, his trial counsel improperly waived his “future 

benefits, the right to trial, and the right to cross examine 

witnesses.” Because section 1016.8 does not apply to cases final 

on appeal, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On September 20, 2019, Mitchell pleaded guilty to assault 

with a firearm, admitted he previously had been convicted of 

assault with a deadly weapon, which qualified as a serious felony 

and a strike, and admitted he personally used a firearm in the 

current case. Pursuant to the plea agreement, the court 

sentenced Mitchell to 23 years. 

Prior to the plea, the trial court gave the standard 

advisement of rights and informed Mitchell of the consequences 

1 Penal Code section 1016.8, subdivision (b) states “A 

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.”

All further undesignated statutory references are to the 

Penal Code.
3

of the plea. Nothing in the record suggests the trial court or 

counsel stated that defendant agreed to waive any benefits to him 

occasioned by future changes in the law. Defendant was given a 

straight sentence without probation, and none of the court’s 

ancillary orders (e.g. prohibition against possession of firearms) 

dealt with waiver of benefits of future changes in the law. 

Mitchell did not appeal from the judgment of conviction. 

On October 6, 2020, Mitchell filed a petition for 

resentencing pursuant to Assembly Bill No. 1618.2 In his

petition, Mitchell stated:

“I request to take my plea back under a separate new

law[:] AB 1618 signed by the Governor in October

2019 provides that the benefits of these new laws

should be available in non-final cases even if the

person entered a plea bargain that included

agreement to a set sentence or a waive[r] [of] [‘]future

benefits of legislative enactments, initiatives,

appellate decision[s], or other changes in the law that

may retroactively apply after the date of the plea is

void as against public policy.’ (Pen. Code, § 1016.8

[subd.] (b).) However, the California Supreme Court

is reviewing the question of whether people who

entered [a] plea agreement can seek resentencing

under the new laws without first obtaining a

certificate of probable cause. (People v. Stamps

(2019) No. S255245; People v. Kelly No. [S]255145.)” 

On October 8, 2020, the court denied Mitchell’s motion, 

stating:

2 This act added section 1016.8 to Penal Code.
4

“The defendant was arraigned 6-27-2019. On that 

date defendant was advised he was facing a 

maximum confinement indeterminate term of 25 

years to life. Nothing regarding a waiver of future 

rights was ever mentioned []or discussed.”

On November 17, 2020, Mitchell filed a timely notice of 

appeal from the denial of his section 1016.8 motion. We 

appointed appellate counsel. After reviewing the record, counsel 

filed an opening brief pursuant to People v. Serrano, supra,

211 Cal.App.4th 496, stating that he found no arguable issues to 

raise on appeal and had informed Mitchell of his right to file a 

supplemental brief on his own behalf. On March 22, 2021, we 

advised Mitchell that he had 30 days to submit any contentions 

or issues he wished us to consider. Mitchell filed supplemental 

briefs on March 29, 2021 and April 1, 2021.

3

DISCUSSION

When a defendant appeals the denial of post-conviction

relief and appellate counsel identifies no cognizable issues, the 

Court of Appeal has “no independent duty to review the record for 

reasonably arguable issues.” (People v. Cole (2020) 

52 Cal.App.5th 1023, 1039.) “However, if the defendant files a 

supplemental brief, the Court of Appeal is required to evaluate 

any arguments presented in that brief and to issue a written 

opinion that disposes of the trial court’s order on the merits . . . .” 

(Id. at p. 1040.) Here, Mitchell filed two supplemental briefs

arguing he was entitled to resentencing under Assembly Bill 

1618. Mitchell’s briefs did not contain a reasoned explanation of 

his points, nor significant analysis of the law.

3 We authorized the filing of the second brief. 
5

Assembly Bill 1618 enacted section 1016.8 and codified the 

Supreme Court’s decision in Doe v. Harris (2013) 57 Cal.4th 64. 

There, the Supreme Court held the fact the parties have entered 

into a plea agreement does not insulate them from future 

changes in the law intended to have retroactive effect. (See 

People v. Stamps (2020) 9 Cal.5th 685, 704–705.) The court 

stated that section 1016.8 “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. (b)).” (Id. at p. 705.) A plea bargain requiring such a 

waiver is deemed not to be either knowing or intelligent. 

(§ 1016.8, subd. (a)(4).) 

We agree with the trial court’s express finding that nothing

in the record reflects that Mitchell’s plea included a provision 

that section 1016.8 invalidates.

We have reviewed the record and are satisfied that 

Mitchell’s appointed appellate counsel has fully complied with his 

responsibilities and no arguable issues exist. (See People v. Cole 

(2020) 52 Cal.App.5th 1023, 1039–1040, review granted Oct. 14, 

2020, S264278; People v. Serrano, supra, 211 Cal.App.4th at 

p. 503.) 

DISPOSITION

The October 8, 2020, order denying Mitchell’s petition for

resentencing is affirmed.

RUBIN, P. J.

WE CONCUR:

BAKER, J. KIM, J.