Filed 8/24/26 P. v. McDonnell CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086396
Plaintiff and Respondent, (Super. Ct. No. SCD296972)
v.
BRETT J. McDONNELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Euketa Oliver, Judge. Reversed and remanded.
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christopher P. Beesley and Connor O. Sakati, Deputy Attorneys General, for
Plaintiff and Respondent.
MEMORANDUM OPINION1
In 2021, Brett J. McDonnell pled no contest to stalking with a prior.
(Pen. Code,2 § 646.9, subd. (c)(2).) Section 646.9, subdivision (c)(2) prescribes
a two-, three-, or five-year prison term for stalking. As part of his plea
agreement, he stipulated to a suspended five-year prison sentence, the upper
term for this offense, and the court placed him on two years of formal
probation. In 2023, McDonnell admitted a probation violation, and the court
revoked probation. In 2025, the court imposed the stipulated five-year upper
term prison sentence. It rejected McDonnell’s argument that imposition of
the upper term violated section 1170 because he had not stipulated to any
aggravating circumstances and he was entitled to the ameliorative benefit of
Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). The People
concede, and we agree, that the judgment must be reversed and the matter
remanded for additional proceedings.
Senate Bill 567 amended section 1170 to make the middle term the
presumptive sentence and permit a trial court to impose the upper term only
“when there are circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term and the facts
underlying those circumstances have been stipulated to by the defendant or
have been found true beyond a reasonable doubt.” (§ 1170, subd. (b)(2);
People v. Mitchell (2026) 19 Cal.5th 729, 737–738 (Mitchell).) In Mitchell, the
1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin.,
§ 8.1.) We do not recite the factual and procedural background because our
opinion is unpublished and the parties are familiar with the facts of the case
and its procedural history. (People v. Garcia (2002) 97 Cal.App.4th 847, 851
[unpublished opinion merely reviewing correctness of trial court’s decision
“does not merit extensive factual or legal statement”].)
2 Undesignated statutory references are to the Penal Code.
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California Supreme Court resolved the effect of section 1170, subdivision (b)
on negotiated dispositions, holding that Senate Bill 567’s amendments to the
statute apply retroactively to sentences imposed pursuant to stipulated plea
agreements in cases that were not final on appeal. (Mitchell, at p. 735.)
Here, McDonnell neither stipulated to any aggravating facts nor did
the prosecutor prove any. We therefore reverse the judgment because the
facts relied on to justify the upper term were not “stipulated to or proven
beyond a reasonable doubt at a jury or court trial.” (Mitchell, supra, 19
Cal.5th at p. 735.) McDonnell may reaffirm the bargain and waive the
requirements now applicable under section 1170, subdivision (b), or he may
withdraw his plea and return the parties to a pre-plea posture, with the
prosecutor bearing its burden of proof. (Mitchell, at p. 749.) What he may
not do, however, is unilaterally obtain a reduction of his agreed-upon upper
term sentence to the middle term. (Ibid.)
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court
for further proceedings consistent with this opinion.
BERMÚDEZ, J.
WE CONCUR:
MCCONNELL, P. J.
BUCHANAN, J.
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