by Douglas Ankney

In resolving a split among the Courts of Appeal, the Supreme Court of California unanimously held that defendants who agreed to upper term sentences as part of plea bargains may seek the retroactive benefit of amended Penal Code § 1170, subdivision (b), which requires that aggravating facts justifying an upper term be stipulated to by the defendant or proven beyond a reasonable doubt at trial. The Court rejected the Attorney General’s position that the statute does not govern stipulated sentences and the defendant’s claim of entitlement to a unilateral reduction to the middle term. Because the defendant could not have waived rights created by a statute not yet in effect at her plea, the Court reversed and remanded under the framework of People v. Stamps, 467 P.3d 168 (Cal. 2020), disapproving People v. Sallee, 88 Cal. App. 5th 330 (2023), to the extent inconsistent.

Background

In November 2020, Sunee Lynn Mitchell was arrested in Ukiah, California, following a high-speed chase during which she drove through red lights and traveled in oncoming lanes with a blood-alcohol content of 0.183 percent. The district attorney charged Mitchell with four felonies, including assault on a peace officer and assault with a deadly weapon, two misdemeanor DUI counts, and a prior strike allegation for robbery.

In July 2021, Mitchell accepted a negotiated disposition, pleading no contest to a non-strike felony count of driving with willful or wanton disregard for safety while fleeing from an officer and a misdemeanor DUI charge, and admitting the prior robbery conviction. The remaining charges were dismissed, including two assault counts that would have qualified as additional strikes and carried longer potential sentences. Mitchell stipulated to the aggravated three-year term, doubled to six years under the Three Strikes law.

While Mitchell’s appeal was pending, Senate Bill 567 took effect on January 1, 2022, amending § 1170(b) to require that aggravating facts supporting an upper term be stipulated to or found true beyond a reasonable doubt. The Court of Appeal denied relief, reasoning that the trial court had not exercised sentencing discretion but merely imposed the bargained-for sentence. Notably, the Courts of Appeal split on the question. Sallee adopted similar reasoning, while People v. Todd, 88 Cal. App. 5th 373 (2023), People v. Fox, 90 Cal. App. 5th 826 (2023), and People v. De La Rosa Burgara, 97 Cal. App. 5th 1054 (2023), reached the opposite conclusion. The Supreme Court granted review.

Analysis

The Attorney General argued that § 1170(b) applies only when a trial court exercises its “sound discretion” in selecting among three possible terms and that a court imposing a negotiated sentence performs no such function. The Court rejected that interpretation, explaining that the statute governs all sentences imposed pursuant to a statutory triad and that the amended provision makes “the middle term the maximum term the court can legally impose absent the additional findings the statute requires.” People v. Lynch, 552 P.3d 877 (Cal. 2024). A trial court accepting a plea bargain must impose a lawful sentence, and the agreed-upon upper term therefore fell within the statute’s reach, the Court reasoned.

The Court acknowledged that a court accepting a plea bargain considers a narrower question, namely whether to approve or reject the bargain, rather than which term to select. Negotiating upper term sentences was well-established practice, and nothing in the statute’s text or legislative history signaled an intent to displace the plea framework codified in § 1192.5. Thus, the Court ruled that a plea bargain specifying an upper term relieves the court of its obligation under § 1170(b)(2) to find properly proven aggravating facts, “but this is only true if the defendant, in entering the plea bargain, validly waives section 1170(b)’s requirements.” Because § 1170(b)(2) gives rise to a “constitutional imperative,” the Court declared that any such waiver must satisfy constitutional standards.

Entitlement to
Retroactive Benefit

The parties agreed that Senate Bill 567’s amendments apply retroactively to nonfinal judgments under In re Estrada, 408 P.2d 948 (Cal. 1965), a concession the Court accepted, noting that the dispositive question was whether Mitchell validly waived § 1170(b)’s protections when she agreed to the upper term before the statute was amended. Relying on People v. French, 178 P.3d 1100 (Cal. 2008), the Court concluded she had not. When Mitchell entered her plea, the then-operative version of § 1170(b) conferred broad sentencing discretion on trial courts, and no right to jury trial on aggravating facts existed. Mitchell’s waiver of trial rights on the substantive offenses “cannot reasonably be interpreted to extend to proof of aggravating circumstances when, at the time of the plea, no right to a jury trial on such circumstances had been recognized,” the Court stated. French.

The Attorney General argued that Mitchell implicitly waived these requirements under People v. Hester, 992 P.2d 569 (Cal. 2000). The Court distinguished Hester, finding its rationale inapplicable because that case’s concern with preventing defendants from trifling with courts by improving their bargains presupposed that the waived rights were established at sentencing. That concern was absent here because Senate Bill 567 was not operative at the time of Mitchell’s plea. Section 1016.8, enacted in 2019, reinforced this conclusion. That statute states plea bargain provisions requiring defendants to waive “unknown future benefits of legislative enactments” to be “void as against public policy.” The Court reasoned that it should not “by implication, find a waiver of unknown future benefits that could not have been entered into expressly.”

Mitchell argued that her upper term should be reduced to the middle term while retaining the favorable aspects of her plea bargain. The Court rejected this approach. Applying Stamps, the Court held the proper remedy is a remand affording Mitchell several options. She may waive § 1170(b)’s requirements and reaffirm the original bargain, in which case the court shall reinstate the agreed-upon sentence. The parties may also negotiate a modified agreement specifying a middle-term sentence for the non-strike felony count of driving with willful or wanton disregard for safety while fleeing from an officer, doubled under the Three Strikes law, subject to the court’s approval. Absent a modified agreement, Mitchell may withdraw her plea, returning the parties to a pre-plea posture, the Court instructed.

Conclusion

Accordingly, the Court reversed the judgment of the Court of Appeal in part and remanded for further proceedings consistent with its opinion. See: People v. Mitchell, 2026 Cal. LEXIS 2620 (2026).  

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