People v. Mitchell CA3

Filed 10/13/23 P. v. Mitchell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097390

Plaintiff and Respondent, (Super. Ct. No. CRF21-00854)

v.

JAMES CHESTER MITCHELL,

Defendant and Appellant.

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.