People v. Mitchell CA2/5

Filed 7/23/21 P. v. Mitchell CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B309107

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA477472) v.

GREGORY JEROME MITCHELL,

Defendant and Appellant.

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.

__________________________

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