Filed 10/28/26 P. v. Smith CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
THE PEOPLE, C102353
Plaintiff and Respondent,
(Super. Ct. No. 18FE022060)
v.
OPINION ON TRANSFER
CHRISTOPHER JOHN SMITH,
Defendant and Appellant.
Defendant Christopher John Smith pled no contest to grand theft (Pen. Code,
§ 487, subd. (a)) 1 and stipulated to an upper term sentence of three years in county jail.
In accordance with the plea agreement, the trial court imposed and suspended the
stipulated sentence and placed Smith on formal probation through the reentry court
program (program). After Smith absconded from the program, the court executed the
stipulated term. The court denied Smith’s request for resentencing “to no higher than the
midterm” pursuant to section 1170, subdivision (b).
On appeal, Smith argued that the trial court erred when it refused to consider
lowering his sentence from the stipulated (and previously suspended) upper term of three
years. Specifically, he claimed the amendments to section 1170, subdivision (b) made by
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), which limited the trial
1 Undesignated statutory references are to the Penal Code.
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court’s ability to impose an upper term sentence, applied to entitle him to resentencing
notwithstanding the fact that the upper term sentence he challenged on appeal was part of
a stipulated sentence. 2 We previously affirmed the judgment.
Now, this matter is before us on transfer from our Supreme Court for
reconsideration in light of People v. Mitchell (2026) 19 Cal.5th 729 (Mitchell II), wherein
the Supreme Court resolved the effect of section 1170, subdivision (b) on negotiated
dispositions, holding that Senate Bill No. 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 II, at p. 735.) In accordance with the directions from
our Supreme Court, we vacated our earlier decision. The parties did not file
supplemental briefs. (Cal. Rules of Court, rule 8.200(b)(1).)
Having now considered the decision in Mitchell II, we conclude that the matter
must be remanded.
BACKGROUND
On December 17, 2020, Smith pled no contest to grand theft. (§ 487, subd. (a).)
In accord with the plea agreement, the trial court sentenced Smith to the stipulated upper
term of three years in county jail. The sentence was suspended, and Smith was placed on
two years of formal probation through the program. Among other things, the terms of
probation required Smith to comply with the program rules, conditions, and contract. 3
2 We note Smith did not argue he was presumptively entitled to a lower term sentence
(see § 1170, subd. (b)(6)(A)-(C)), or point to anything in the record suggesting as much.
Instead, he broadly argued that in the absence of aggravating factors found or stipulated
to be true, the trial court erred in executing his upper term sentence and was required to
provide him with a resentencing hearing.
3 Neither the plea agreement form nor the program’s contract were included in the record
on appeal, but the terms are generally described by the trial court. There is no dispute
that Smith was properly deleted from the program and facing execution of his custodial
2
Smith was required to successfully participate for at least one year in order to graduate
and have the suspended term lifted. However, he would be required to serve the
suspended term if he were deleted from the program.
On August 13, 2024, Smith filed a statement in mitigation wherein he asked the
trial court to resentence him “to no higher than the midterm” based upon the changes
made by Senate Bill No. 567 to section 1170, subdivision (b). At the hearing, the court
acknowledged the prior split in authority on whether it was required to resentence a
defendant under Senate Bill No. 567 when there is a stipulated sentence. The court chose
to follow the decision in People v. Mitchell (2022) 83 Cal.App.5th 1051 (Mitchell I),
which held that a defendant is not entitled to resentencing when there is a stipulated
sentence, and denied the resentencing request, while at the same hearing granting the
People’s request to delete Smith from the program because he had absconded. The court
terminated probation and executed the stipulated upper term of three years.
Smith timely appealed.
DISCUSSION
Senate Bill No. 567, effective January 1, 2022, amended section 1170 to limit the
trial court’s ability to impose the upper term by making the middle term the presumptive
prison term unless specified circumstances exist. (§ 1170, subd. (b)(1)-(2); Stats. 2021,
ch. 731, § 1.3.) A trial court “may impose a sentence exceeding the middle 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 at trial by the jury or by the judge in a court trial.” (§ 1170, subd.
(b)(2).)
sentence. The sole issue on appeal is the applicability (to Smith’s stipulated suspended
sentence) of the heightened requirements for a trial court’s discretionary decision to
impose an upper term sentence created by Senate Bill No. 567.
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As a general matter, Senate Bill No. 567’s amendments to section 1170 apply
retroactively to all nonfinal cases. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109,
disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730.) And, as more
recently held in Mitchell II, the amendments to section 1170, subdivision (b) also apply
retroactively to stipulated upper term sentences imposed pursuant to plea agreements in
cases not final on appeal. (Mitchell II, supra, 19 Cal.5th at p. 735.) Thus, unless a
defendant “validly waive[d] section 1170[, subdivision ](b)’s new requirements when
[he] entered [his] plea,” the judgment must be reversed and remanded for further
proceedings. (Id. at pp. 745, 735-736, 749.)
Here, Smith pleaded in 2020, several years before section 1170, subdivision (b)
was amended by Senate Bill No. 567. He therefore could not, and did not, waive the new
requirements under amended section 1170, subdivision (b), as they did not yet exist.
“On remand, [defendant] may either waive or invoke section 1170[,
subdivision ](b)’s requirements. If [he] reaffirms [his] acceptance of the plea bargain and
waives the rights now conferred under section 1170[, subdivision ](b), the court shall
reinstate the original sentence as negotiated by the parties. If [he] declines to enter that
waiver, in lieu of further proceedings the parties may agree to modify the existing plea
bargain … then seek the court’s approval of [a] downward departure. Absent a modified
agreement and approval, [defendant]’s remedy is to withdraw h[is] assent to the bargain,
in which case [defendant]’s plea will be set aside and the parties returned to a pre-plea
posture. At that point they would remain free to renegotiate further if they choose or to
proceed to trial.” (Mitchell II, supra, 19 Cal.5th at pp. 735-736.)
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DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.
/s/
BOULWARE EURIE, Acting P. J.
We concur:
/s/
FEINBERG, J.
/s/
DAMRELL, J.
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