Tag Archives: Pleas and plea bargains

Amelioration, Gary Musings, Sentencing, Standard of review

Case 000723

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court was required to revisit whether the gang enhancement attached to the felony assault charge was still valid in light of changes to the gang criminal activity statutes under AB 333. When asked to strike the enhancement, the trial court stated that it did not have discretion to relitigate the facts underlying the gang enhancement. This was error.

First Holding:

Section 1172.75 rendered legally invalid any prior prison term enhancement imposed before January 1, 2020 (unless the enhancement was imposed for a prior sexually violent conviction), and it created a resentencing procedure for defendants who are currently serving sentences that include such an enhancement. Section 1172.75(c) requires a court to strike any now-invalid prior prison term enhancement and recall the defendant’s sentence.

Section 1172.75(d) provides instructions for resentencing. Among other things, the provision requires the court to resentence the defendant under current law, including any changes in law that reduce sentences.

Authority:

PEN 1172.75

Second Holding:

We review a trial court’s sentencing decisions for abuse of discretion. A court abuses its discretion when it acts arbitrarily and capriciously, relies on improper matters, or is unaware of the scope of its discretion such that it does not exercise its discretion at all. We independently review questions of statutory interpretation implicated by the trial court’s decisions.

Authority:

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Mathis (2025) 111 Cal.App.5th 359, 366

Third Holding:

Effective January 1, 2022, AB 333 made several changes to the law governing the gang enhancement.

First, AB 333 narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, it changed the requirement that a gang’s members individually or collectively engage in a pattern of criminal activity to now require that any such pattern be collectively engaged in by members of the gang.

Third, it narrowed the definition of a pattern of criminal gang activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date of the currently charged offense; (2) the pattern offenses were committed by two or more gang members, as opposed to just persons; (3) the pattern offenses commonly benefitted a criminal street gang; and (4) none of the pattern offenses is the same as the currently charged offense.

Finally, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Examples of a common benefit that are more than reputational, under the amended provision, include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

PEN 186.22

Fourth Holding:

AB 333’s amendments to section 186.22 apply retroactively to the defendant’s case because they are ameliorative changes and the defendant’s case became nonfinal when the court vacated and recalled his sentence under section 1172.75.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

People v. Padilla (2022) 13 Cal.5th 152, 163

People v. Lopez (2025) 17 Cal.5th 388, 396–400

Fifth Holding:

In Stamps, the Supreme Court held that a trial court may not modify a plea agreement because a plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. But, as the Supreme Court explained in Doe v. Harris, the terms of the plea agreement can be affected by changes in the law. By implementing such changes, the trial court is not altering the terms of the plea bargain.

Thus, under Doe, the defendant’s 2016 plea agreement is deemed to incorporate the Legislature’s subsequent enactment of AB 333. Consequently, requiring the parties compliance with changes to section 186.22 made retroactive to the defendant does not violate the terms of the plea agreement. We therefore conclude that the gang-related enhancement findings must be vacated and the matter remanded to give the People the opportunity to prove the applicability of the enhancements under the amendments to section 186.22.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 701

Doe v. Harris (2013) 57 Cal.4th 64, 73-74

People v. Harrell (2023) 95 Cal.App.5th 161, 168

People v. Lopez (2021) 73 Cal.App.5th 327, 346

Extensive Gary Note, NOT In The Opinion:

Gary note: I think I first noted this in my summary for Case 000532. But effective 1/1/2025, section 1171 provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

This question was granted review in a case that originally issued a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?”

On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.”

The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.  As I stated, the “published” opinion also was wiped off the books when the Supreme Court ordered it depublished.

In the recent decision People v. Mitchell (2026) 19 Cal.5th 729, the Supreme Court indicated its awareness of section 1171–as it obviously did when it transferred the Montgomery case–but declined to apply it where the case was a direct appeal from the judgment itself, in which the appellant challenged the stipulated sentence–in which he agreed to and received an upper term before section 1170 was amended to require jury findings for upper terms.

See Mitchell’s footnote 9. Keep in mind that section 1171 was created to guide courts in the handling of newly enacted ameliorative legislation. The Supreme Court in Mitchell seems to have left open the question where the appeal is from the original judgment itself, rather than an appeal from an attempt at securing relief from ameliorative statutes. Its footnote 9 ends, “We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

And for the rest of the story, the Court of Appeal has since, in an unpublished sentence, remanded the matter to the trial court to permit the defendant to seek relief under the ameliorative provisions.  At that time, the defendant may present the argument that section 1171 bars the prosecution or the court from seeking that the plea agreement be set aside if either the prosecutor or the court is not satisfied with any resulting modification of the sentence.

Authority:

Gary has no authority, just musings.

Immigration, Plea bargains, Standard of review

Case 000688

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by denying the defendant’s motion to vacate his conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available.

However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Fourth Holding:

While the judge who took the plea in 1995 declared her practice was to ensure defendants received sufficient immigration advisements, she mentions only possible consequences. She does not state she or the district attorney made the mandatory consequences explicit. Because the defendant’s plea predated Padilla, the requirement making this advisement mandatory for defense counsel did not yet exist. Without an explicit statement about the mandatory consequences, the immigration advisement was inadequate.

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905–906 [where immigration consequences are clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Vivar (2021) 11 Cal.5th 510, 523 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient]

Fifth Holding:

To determine prejudice, we focus on whether there is a reasonable probability the defendant would have turned down the plea agreement had he understood the immigration consequences. [The court then described his ties to the United states.] We also determine whether there was reason for the defendant to believe an immigration-neutral disposition was possible. His attorney testified to several other crimes to which the defendant could have pleaded that would have been better for his immigration prospects. Although his exposure was eight years, his plea agreement was for less than a year of prison time. He may have needed to accept a longer prison time to obtain a lesser conviction, but he averred this willingness.

The sparse record we have does not provide reason to believe the prosecutor would have rejected such a proposal automatically. Moreover, though the trial court stated, and the prosecutor argues, it would have been irrational to roll the dice on a longer sentence with such an offer in hand, the Supreme Court of the United States has recognized that someone in the defendant’s position might indeed rationally make such a decision, as the defendant affirmed he would have.

Authority:

Lee v. United States (2017) 582 U.S. 357, 371

Appellate Principles, Juveniles, Plea bargains, Sentencing

Case 000684

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred when it set minor’s maximum confinement term at 33 years plus 25 years to life. We modify the maximum term of confinement to 25 years eight months plus 25 years to life.

First Holding:

Effective January 1, 2019, the Legislature passed SB 1391. The amendment eliminated the transfer of juveniles accused of committing crimes when they are 14 or 15 years old, unless they are first apprehended after the end of juvenile court jurisdiction. One year later, in 2020, the Legislature passed juvenile justice realignment through SB 823. It overhauled juvenile wardship law by closing the Division of Juvenile Justice and transferring jurisdiction over youthful offenders to counties, with the stated purpose of ensuring minors are closer to their families and communities and receive age appropriate treatment.

Authority:

WIC 707(a)

WIC 736.5

O.G. v. Superior Court of Ventura County (2011) 11 Cal.5th 82, 89

In re M.B. (2024) 99 Cal.App.5th 435, 448

In re T.O. (2022) 84 Cal.App.5th 252, 262–263

In re Miguel C. (2021) 69 Cal.App.5th 899, 907

Second Holding:

Section 875, effective May 14, 2021, was added as part of the juvenile justice realignment. Under the new scheme, commencing July 1, 2021, the court may order that a minor who is 14 years of age or older be committed to Secure Youth Treatment Facility if the minor meets certain criteria.

Authority:

WIC 875(a)

In re J.P. (2023) 94 Cal.App.5th 74, 78

Third Holding:

Section 875(b)(1) states the baseline term must be based on the most serious recent offense for which the minor has been adjudicated and shall represent the time in custody necessary to meet the developmental and treatment needs of the minor and to prepare the minor for discharge to a period of probation supervision in the community. The baseline term must be consistent with specified guidelines and may deviate by no more than six months.

Authority:

WIC 875(b)(1)

Fourth Holding:

In deciding minor’s placement, the juvenile court has maximum flexibility to craft suitable orders aimed at rehabilitating the particular minor before it.

Dispositional orders must conform with the purposes of juvenile delinquency laws, which are “twofold: (1) to serve the best interests of the delinquent minor by providing care, treatment, and guidance to rehabilitate the minor and enable him or her to be a law abiding and productive member of his or her family and the community, and (2) to provide for the protection and safety of the public.

It must consider the broadest range of information in determining how best to rehabilitate a minor and afford him adequate care. A disposition hearing record should reflect evidence that the proposed means of rehabilitation will result in probable benefit to the minor, and that the goals of the juvenile law could not have been met by a less restrictive placement.

Authority:

In re James R. (2007) 153 Cal.App.4th 413, 432

In re Carlos J. (2018) 22 Cal.App.5th 1, 7

In re Michael D. (1987) 188 Cal.App.3d 1392

In re Miguel C. (2021) 69 Cal.App.5th 899, 906

In re Charles G. (2004) 115 Cal.App.4th 608, 614

In re Robert H. (2002) 96 Cal.App.4th 1317, 1329

Fifth Holding:

Plea bargains are an accepted and integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Plea bargaining is a common feature in juvenile delinquency proceedings, just as it is in criminal proceedings in adult court. Similar principles apply in both settings.

A plea bargain is a contract between the accused and the prosecutor. Both of these parties are bound to the terms of the agreement; when the court approves the plea bargain, it also agrees to be bound by its terms. Both the accused and the prosecution are entitled to the benefit of the plea bargain. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made.

Authority:

People v. Collins (1978) 21 Cal.3d 208, 214

People v. Segura (2008) 44 Cal.4th 921, 929

In re Kenneth H. (2000) 80 Cal.App.4th 143 [It is well settled that a plea bargain is a tripartite agreement which requires the consent of the defendant, the People and the court]

In re Jermaine B. (1999) 69 Cal.App.4th 634, 639 [Plea bargaining is an accepted practice in our criminal justice system]

People v. Vargas (2001) 91 Cal.App.4th 506, 533

People v. Armendariz (1993) 16 Cal.App.4th 906, 911

People v. Panizzon (1996) 13 Cal.4th 68, 80 [When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties must abide by the terms of the agreement]

Sixth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Ames (1989) 213 Cal.App.3d 1214, 1217

Seventh Holding:

The court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea. Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case, or where, after further consideration, the court concludes that the bargain is not in the best interests of society. In deciding whether or not to withdraw approval of a plea bargain, the court may of course be expected to consult the probation report.

Authority:

eople v. Johnson (1974) 10 Cal.3d 868, 873

People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338

People v. Stringham (1988) 206 Cal.App.3d 184, 194

Eighth Holding:

A minor who does not challenge an assertedly erroneous ruling of the juvenile court in that court has forfeited his or her right to raise the claim on appeal. The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the court—so any error may be corrected. While forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880; In re F.M. (2023) 14 Cal.5th 701, 710

In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground

In re M.R. (2005) 132 Cal.App.4th 269, 273–274

United States v. Olano (1993) 507 U.S. 725, 733–734

In re Uriah R. (1999) 70 Cal.App.4th 1152, 1155 [A broad or general waiver such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error]

Ninth Holding:

The juvenile court incorrectly calculated the determinative portion of the term for count 2, the primary offense, as 19 years. Attempted murder, the offense in count 2, has a sentencing triad of five, seven, or nine years, for which the juvenile court imposed the upper term of nine years plus a 10 year term for the attendant gang enhancement pursuant to Penal Code section 186.22(b)(1)(C).

However, section 875(c)(1)(B) specifically states the term chosen by the juvenile court cannot exceed the middle term for which an adult would be eligible, with some exceptions. Therefore, the court erred in imposing the upper term for count 2.

Authority:

WIC 875(c)(1)(B)

Tenth Holding:

The juvenile court also miscalculated the consecutive term for count 1. Count 1 was the subordinate term, and the court was limited to one-third of the middle term plus one-third of the enhancements.

Authority:

PEN 1170.1

Appellate Principles, Elements of crime, Plea bargains

Case 000679

Posted on by Gary McCurdy

Error and/or relief

Count ten as pled created a legal impossibility requiring reversal of the trial court’s acceptance of defendant’s plea agreement.

First Holding:

A claim not presented in the opening brief and was first raised in the appellant’s reply brief is deemed waived.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9

Second Holding:

Generally, a guilty or no contest plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence to support the conviction. Nonetheless, a defendant may still assert that his, her, or their admission included a legal impossibility.

Authority:

People v. Palmer (2013) 58 Cal.4th 110, 114

People v. Voit (2011) 200 Cal.App.4th 1353, 1365

Third Holding:

The term ‘legal impossibility,’ as applied to a choate [sic] crime, is merely a catch phrase for saying that, as a matter of law, the statute under which the defendant is charged does not prohibit his, her, or their conduct. Put another way, legal impossibility exists when the facts as admitted cannot constitute the crime pled to, such as where the victim’s characteristics fall outside of the statutory definition.

Authority:

People v. Jerome (1984) 160 Cal.App.3d 1087, 1094, 1099 [setting aside plea to oral copulation of a minor under 14 where the victim was 15]

People v. Richardson (2021) 65 Cal.App.5th 360, 371-375 [setting aside no contest plea to human trafficking of a minor where victim was not a minor]

People v. Soriano (1992) 4 Cal.App.4th 781 [a death certificate is not an instrument within the meaning of section 115, so it was legally impossible for the defendant to be guilty of section 115 for attempting to forge a death certificate]

Fourth Holding:

We conclude that because section 134 [essentially, falsifying a document for a fraudulent or deceitful purpose] is not one of the specifically enumerated offenses in section 653f(a) [solicitation of another to commit specified crimes] and given that the elements of a section 134 offense do not necessarily establish one of the specifically enumerated offenses, defendant’s plea to violating section 653f(a) by committing a violation of section 134 has resulted in a legal impossibility requiring reversal.

Authority:

People v. Soriano (1992) 4 Cal.App.4th 781, 784, 786

Duty of the court, Effective assistance of counsel, Plea bargains, Probation Parole PRCS, Sentencing

Case 000544

Posted on by Gary McCurdy

Error and/or relief

When the court set the probation term at three years instead of the agreed-on two years, the court erred in not complying with the plea bargain without permitting the defendant to withdraw from the plea agreement.

First Holding:

The standard for evaluating claims that counsel provided constitutionally ineffective assistance is set forth in Strickland. This standard provides that to secure reversal upon the ground of ineffective assistance of counsel under either the state or federal Constitution, an appellant must establish (1) that counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that appellant would have obtained a more favorable result absent counsel’s shortcomings.

On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687–694

People v. Cunningham (2001) 25 Cal.4th 926, 1003

People v. Mai (2013) 57 Cal.4th 986, 1009

Second Holding:

It is the appellant’s burden to demonstrate by a preponderance of the evidence that his or her counsel’s performance fell below an objective standard of reasonableness. Unless an appellant establishes the contrary, we shall presume that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Further, failure to raise a meritless objection is not ineffective assistance of counsel.

Authority:

In re Thomas (2006) 37 Cal.4th 1249, 1257

People v. Ledesma (2006) 39 Cal.4th 641, 746

People v. Bradley (2012) 208 Cal.App.4th 64, 90

Third Holding:

The defendant argues that his trial counsel was ineffective by failing to object when the trial court placed on a three-year grant of probation instead of the two-year probation term contemplated by the plea agreement. However, the order of probation is an unauthorized sentence, on which basis we reverse, rendering moot the question of ineffective assistance of counsel.

The Legislature enacted AB 1950, effective January 1, 2021, which significantly changed the law governing probation, including section 1203.1. Under the amended version of section 1203.1, the maximum term of probation a trial court may impose for most felony offenses is a period of time not exceeding two years. Whereas previous law had authorized courts to grant a period of probation not exceeding the maximum term for which the person could be imprisoned, AB 1950 instead authorizes a court to impose a term of probation not longer than 2 years, except as otherwise specified. As a general matter, the amendments of AB 1950 apply retroactively to the benefit of a person whose judgment is not yet final on appeal.

Authority:

PEN 1203.1

People v. Arreguin (2022) 79 Cal.App.5th 787, 793

People v. Faial (2025) 18 Cal.5th 199, 207

People v. Prudholme (2023) 14 Cal.5th 961, 963 [modifying term of probation to conform with new law while preserving remainder of plea agreement]

Fourth Holding:

Generally, a court may not accept an unauthorized plea. Where a trial court is asked to approve an illegal plea bargain—illegal because it violates a policy condition established by the Legislature or the people through the initiative process—the proper course of action for the court is clear. It should decline to act in excess of its authority and should refuse to approve an arrangement under which it is called upon to do so. Faced with an unlawful plea bargain, a trial court should withhold approval of the bargain.

Thus, if a court has approved a plea bargain containing an illegal term, ordinarily, the recourse for a court would not be to reform the bargain to make it legal; it would be to withdraw its prior approval of the agreement. Whether by withdrawal of its prior approval or the granting of a withdrawal/rescission request by one or both of the parties, the trial court must restore the parties to the status quo ante. The parties may then enter into a new plea agreement, which will be subject to the trial court’s approval, or they may proceed to trial on the reinstated charges.

Authority:

People v. Prudholme (2023) 14 Cal.5th 961, 974

People v. Stamps (2020) 9 Cal.5th 685, 707

People v. Aragon (1992) 11 Cal.App.4th 749, 756–757 [When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered]

People v. Barton (2020) 52 Cal.App.5th 1145, 1159

[Gary Note:

Gary note: This unpublished opinion recognizes that section 1171, effective 1/1/2025, provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

This question was granted review in a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?” On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.” The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.

But Wait! There’s More!

On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

But it contained a very important footnote:

“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”]