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Does SB 567 Apply if Sentence Was Plea Bargained?

Since Senate Bill 567 came into effect on January 1, 2022, we have received several calls from people in prison or families of people in prison who explain to us that there is a sentence with an upper term and therefore, resentencing must be performed or the person in prison is entitled to a hearing for resentencing.

This is a common understanding of Senate Bill 567 and it is incorrect.  Senate Bill 567 amended Penal Code § 1170(b) regarding sentencing a person to state prison, “to make the middle term [within the sentencing triad for any offense] the presumptive sentence for a term of imprisonment; a court must now impose the middle term for any offense that provides for a sentencing triad unless 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.”  Penal Code § 1170(b)(1) & (2). 

The full meaning of this new law – and its limitations – are exemplified in the recent opinion from the First Appellate District in People v. Sunee Lynn Mitchell, a case originally arising out of the Mendocino County Superior Court. 

On November 29, 2000, a police officer was driving his patrol car when he saw Ms. Mitchell driving recklessly down the street.  Nearby witnesses told the officer that Ms. Mitchell had been “doing donuts” in a parking lot and tried to hit them with her car.

The officer then activated his emergency lights and siren to pursue Ms. Mitchell, who responded by speeding up and driving through an intersection while facing a red light.  At one point, Ms. Mitchell made a U-turn and drove directly at the police officer.  She came within a foot of hitting the police car. 

Another officer came to assist and Ms. Mitchell led them on a high speed chase.  When she eventually came to a stop, she refused to exit her vehicle, prompting an officer to break her window to get her out and arrest her.

She then submitted to a breath sample and her breath was measured at 0.183% blood alcohol content (BAC).

Ms. Mitchell was charged with assault on a police officer (Penal Code § 245(c)), assault with a deadly weapon (Penal Code § 245(a)(1)), driving against the flow of traffic while evading a police officer (Vehicle Code § 2800.4), reckless driving while evading a police officer (Vehicle Code § 2800.2(a)), driving under the influence of alcohol (Vehicle Code § 23152(a)) and driving with a blood alcohol content of 0.08% or higher (Vehicle Code § 23152(b)).  The complaint also alleged that Ms. Mitchell had a prior “strike” conviction for second degree robbery.

On July 15, 2021, pursuant to a stipulated plea agreement, Ms. Mitchell pleaded no contest to reckless driving while evading a police officer and driving with a BAC of 0.08% or higher and admitted the strike allegation for second degree robbery.

As a factual basis for the plea, Ms. Mitchell stated that she drove recklessly while evading a police officer.  The agreement included a sentence of six years imprisonment comprised of the upper term of three years for the evading a police officer, doubled for her prior strike.  The sentence on the DUI ran concurrently.  All other charges were dismissed.

After Senate Bill 567 was passed, Ms. Mitchell appealed her sentence, contending that she was entitled to have the three-year sentence (later doubled for the strike) reduced to two years (then doubled) due to the passage of SB 567.

The First Appellate District denied her appeal, noting that here, the trial court judge exercised no discretion in selecting a lower, middle or upper term in sentencing.  Sentencing was pursuant to the parties’ stipulated plea agreement.  
Moreover, it was Ms. Mitchell who offered as a basis for the sentence that she drove recklessly while evading a police officer.  Furthermore, Ms. Mitchell, in entering into a plea bargain, waived her rights to a jury trial or a court trial, so neither the jury nor the judge could have found aggravating factors anyway.  In other words, SB 567 was not violated and so resentencing was not available to her.

For more information about Senate Bill (SB) 567 resentencing, please click on the following articles:
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