People v. Henry CA1/4 ( 2024 )

Filed 8/30/24 P. v. Henry CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent, A168133
v. (Solano County
JAMAR JAY HENRY II, Super. Ct. No. FCR323094)
Defendant and
ORDER MODIFYING
Appellant.
OPINION;
NO CHANGE IN
JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on August 30,
2024, be modified as follows:
1. Appellant’s name is corrected in the caption to read “Jamar
Jay Henry II.”
There is no change in judgment.
Date: ________________ ____Brown________________ P. J.
1
Filed 8/30/24 P. v. Henry CA1/4 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent, A168133
v. (Solano County
JAMES JAY HENRY, II, Super. Ct. No. FCR323094)
Defendant and
Appellant.
This case returns to us after a remand for resentencing in
light of amendments to Penal Code1 section 1170, subdivision (b)
(section 1170(b)) that became effective after the trial court
sentenced defendant pursuant to a plea agreement for a specified
term. (People v. Henry (May 11, 2022, A164012), [nonpub. opn.].)
Defendant contends that another remand is necessary because
the trial court failed to comply with the remittitur directing it to
resentence him in accordance with the amended statute and
imposed upper term sentences that did not satisfy the statutory
requirements. We find reversible error and remand for further
proceedings.
1 All further statutory references are to the Penal Code.
1
BACKGROUND
The Prior Appeal
In September 2021, pursuant to a negotiated disposition,
defendant pleaded guilty to one count of voluntary manslaughter
(§ 192, subd. (a)), with an enhancement for personal use of a
firearm (§ 12022.5), in exchange for a stipulated sentence of 21
years. The trial court sentenced defendant according to the plea
agreement to 21 years in prison; the sentence consisted of an 11-
year upper term for voluntary manslaughter and a 10-year upper
term for the enhancement.
Defendant appealed his sentence, arguing that he was
entitled to resentencing because of amendments to section
1170(b). (People v. Henry, supra, A164012.) Specifically, Senate
Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) made the
middle term the presumptive sentence for a term of
imprisonment unless certain circumstances exist, and it required
the imposition of the lower term in cases where a defendant’s
youth or psychological, physical or childhood trauma related to
abuse, neglect or sexual violence was a contributing factor to the
commission of the offense, unless the court finds that the
aggravating circumstances outweigh the mitigating
circumstances such that imposition of the lower term would be
contrary to the interests of justice. (Stats. 2021, ch. 731, §§ 1.3,
3(c); § 1170(b)(1)–(3), (6).)
The Attorney General agreed that the amendments applied
retroactively to defendant’s case because his judgment was not
final (In re Estrada (1965) 63 Cal.2d 740), and that “ ‘the case
2
should be remanded for the trial court to resentence defendant
consistent with the changes made to Penal Code section 1170.’ ”
(People v. Henry, supra, A164012.)
The parties also agreed that People v. Stamps (2020)
9 Cal.5th 685, 707 (Stamps) governed defendant’s resentencing
hearing, and we accepted their concession. (People v. Henry,
supra, A164012.) We stated, “Accordingly, if the trial court,
having considered the permissible factors under the amended
law, again imposes the upper-term sentence, defendant’s
sentence would stand. If the court indicates that application of
the permissible factors would not support imposition of the
upper-term sentence, the prosecutor may then either agree to
modify the bargain to reflect the downward departure in the
sentence, or choose to withdraw from the original plea
agreement, and the court may choose to withdraw its prior
approval of the plea agreement.” (Ibid.) “The judgment is
reversed and remanded for further proceedings consistent with
this opinion.” (Ibid.)
Proceedings on Remand
Our remittitur issued on July 13, 2022. In December 2022,
defendant petitioned for resentencing, arguing that: (1) because
no aggravating factors were charged, proven, or admitted, the
court should resentence him to no more than the middle terms of
six years for the offense and four years for the enhancement; and
(2) due to his youth at the time of the offense, and his extensive
childhood trauma, he should be resentenced to no more than six
years (the lower terms).
3
After defendant requested resentencing, the trial court
requested briefing on People v. Mitchell (2022) 83 Cal.App.5th
1051 (Mitchell), which held that amended section 1170(b) “was
not intended to apply to sentences imposed pursuant to a
stipulated plea agreement” because the court does not exercise
sentencing discretion under section 1170(b) in selecting the
lower, middle, or upper term. (Id. at p. 1059.) Defendant argued
that Mitchell was not binding because the California Supreme
Court granted review; the doctrine of the law of the case required
the court to follow this Court’s decision; the court’s jurisdiction
over the case on remand, as defined by the remittitur, prevented
it from taking any action other than that in accordance with the
remittitur; and res judicata and collateral estoppel barred the
District Attorney from relitigating the issue. The District
Attorney urged the trial court to follow Mitchell and to reimpose
defendant’s 21-year sentence.
At a hearing on May 4, 2023, the District Attorney again
urged the court to follow Mitchell. The court responded:
“THE COURT: No, that’s right. It seems to me the
one issue that I came across, if you look at 1170(b)(2),
the alternatives to a finding of an aggravated
circumstance include a stipulation of an aggravated
finding. And I guess this would be implied,
theoretically, I did not lay a record establishing a
stipulation to a specific fact that he plead to high
term. I did take a stipulation as to a factual basis for
the plea.
“So it seems to me that the combination of all of those
things are consistent with the Mitchell analysis and
everything else. We all basically agreed upon this
4
outcome, which included that high term on the
enhancement.
“So, based on — I guess the other thing I meant to go
back and look, but I did not, is whether or not a 53 —
12022.53 was actually filed. I think we did the high
term on the .5, but I suppose we could have gotten to
10 via 12022.53(b) had I invested any time or
thought, which would not technically be a high term.
“But in light of all of those things, it seems to me that
[defendant] made a bargain and that everyone’s
entitled to the benefit of the bargain. I think there’s
a reasonable factual basis for that bargain.
“So, I’m going to deny any further relief, find that the
sentence, as imposed, should stand. Probably all I
need to do.”
The District Attorney agreed with the court’s comments,
and the court continued, “That’s probably all I need to do. I don’t
think I need to resentence him. I think it was sent back on
remitter [sic] for me to consider whether or not I should
resentence. So I guess the order can say I’m denying any request
to resentence and finding that the sentence, as imposed, was
agreed upon and that there was a factual basis for it. I think
that’s all I need to do.
Defense counsel disagreed, remarking that this Court
reversed the judgment. She stated, “I think the Court does have
to resentence him.” The trial court then reviewed this Court’s
prior opinion:
“THE COURT: It says: ‘Accordingly, if the trial
court, having considered the permissible factors
under the amended law and imposes the upper term
sentence, the defendant’s sentence would stand.
5
“ ‘If the Court indicates the application of the
permissible factors would not support imposition of
the upper-term sentence, the prosecutor may then,
again, either agree or modify the bargain to reflect
the downward departure in the sentence or choose to
withdraw from the initial plea agreement.’
“So, I guess let’s — so I assume by saying ‘allow it to
stand’, I suppose if I need to make an additional
factual record, I find based on these facts, the
manner in which the firearm played a substantially
significant role in the totality of the circumstances
resulting in the death of another human being, in my
mind would be sufficient to support a high term. But,
again, I actually think, and I don’t recall [the] cases
cited in the remitter [sic] going there, it seems to me
that under 1170(b)(2), by stipulating to a factual
basis for an agreed upon sentence, everyone is
stipulating to that finding. Is I think how I would
interpret it. I hope I did that right. If not, you can
run it up the flagpole, again, see if I’ve done
something wrong.”
Defendant timely appealed.
DISCUSSION
Defendant’s overarching claim on appeal is that the trial
court’s resentencing decision cannot stand because permissible
aggravating circumstances do not justify the imposition of an
upper term sentence under section 1170(b)(2). He frames his
challenge alternatively, arguing that remand is required either
because the trial court impermissibly followed Mitchell or
because it failed to comply with the remittitur and consider
whether permissible factors under the amended law justify the
imposition of the upper-term sentence. The Attorney General
6
responds that the court did not disobey the remittitur, or,
alternatively, that we should adopt Mitchell and reject our prior
opinion under the change in controlling law exception to the law
of the case doctrine.
As set forth below, we hold that, although the trial court
appears to have followed our order to apply amended section
1170(b)(2), it erroneously concluded that defendant’s 2021 plea
agreement satisfied the requirements of the statute and that the
21-year upper term sentence should therefore stand. In other
words, the court followed our direction, but it erred in applying
the applicable law.2 We also adhere to the law of the case
doctrine.
I. Section 1170(b) and Pleas with Stipulated Sentences
“Effective January 1, 2022, section 1170(b) was amended by
Senate Bill 567 ‘to make the middle term the presumptive
sentence for a term of imprisonment’ unless aggravating
circumstances stipulated to by the defendant or proved true
beyond a reasonable doubt justify imposition of an upper term.
[Citations.]
“Specifically, current section 1170, subdivision (b)(1) states:
‘When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).’
2 Defendant also argues that reversal is required under the
doctrines of judicial estoppel and collateral estoppel. Given our
disposition, we need not address these arguments.
7
“Section 1170, subdivision (b)(2) (section 1170(b)(2))
provides: ‘The 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.’ The trial court may also consider
‘the defendant’s prior convictions in determining sentencing
based on a certified record of conviction without submitting the
prior convictions to a jury.’ ” (People v. De La Rosa Burgara
(2023) 97 Cal.App.5th 1054, 1060–1061 (De La Rosa Burgara).)
“Further, section 1170, subdivision (b)(6) (section
1170(b)(6)) provides ‘the opportunity for a low-term sentence
under specified circumstances, including where a defendant was
a “youth” as defined [by] section 1016.7, subdivision (b) at the
time of the offense and the defendant’s youth was a contributing
factor to the offense, unless the court finds that imposition of the
low term would be contrary to the interests of justice.’ ” (De La
Rosa Burgara, supra, 97 Cal.App.5th at p. 1061.)
The Courts of Appeal are currently divided on the question
of whether the amendments enacted by Senate Bill 567 afford
any relief to defendants who entered into plea agreements with
stipulated sentences before Senate Bill 567 became effective, and
the issue is pending before our Supreme Court. (Compare De La
Rosa Burgara, supra, 97 Cal.App.5th at p. 1063, review granted
Feb. 21, 2024, S283452 [defendant entitled to remand], People v.
8
Todd (2023) 88 Cal.App.5th 373, 381–382, review granted Apr.
26, 2023, S279154 [same], and People v. Fox (2023) 90
Cal.App.5th 826, 831, 835 (Fox) [same] with Mitchell, supra,
83 Cal.App.5th at pp. 1057–1059, review granted Dec. 14, 2022,
S277314 [defendant not entitled to remand] and People v. Sallee
(2023) 88 Cal.App.5th 330, 340–341 [same], review granted
Apr. 26, 2023, S278690.)
II. The Trial Court Incorrectly Applied Section
1170(b)(2)
Initially, the parties dispute whether the trial court
followed the remittitur and applied section 1170(b) as amended
by Senate Bill 567.
After the remittitur, “the trial court is revested with
jurisdiction of the case, but only to carry out the judgment as
ordered by the appellate court.” (People v. Dutra (2006)
145 Cal.App.4th 1359, 1366.) “ ‘Where a reviewing court reverses
a judgment with directions . . . the trial court is bound by the
directions given and has no authority to retry any other issue or
to make any other findings. Its authority is limited wholly and
solely to following the directions of the reviewing court.’ ” (Id. at
p. 1367.) Any judgment rendered contrary to the directions is
void. (Ibid.) When the reviewing court remands the matter for
further proceedings, “its directions must be read in conjunction
with the opinion as a whole.” (Ayyad v. Sprint Spectrum, L.P.
(2012) 210 Cal.App.4th 851, 859.) We review de novo whether
the trial court has correctly interpreted our opinion. (Ibid.)
9
Our remittitur stated, “The judgment is reversed and
remanded for further proceedings consistent with this opinion.”
(People v. Henry, supra, A164012.) Our opinion summarized that
defendant claimed entitlement to resentencing based on
amendments to section 1170(b), and the Attorney General agreed
that those amendments applied retroactively and “ ‘the case
should be remanded for the trial court to resentence defendant
consistent with the changes made to [section 1170(b)].’ ” (People
v. Henry, supra, A164012.) We set forth directions for the
resentencing proceeding, stating that the court should consider
“permissible factors under the amended law” in determining
whether to impose the upper-term sentence; if the court found
that consideration of the permissible factors would not support
imposition of the upper-term sentence, the prosecutor could agree
to modify the bargain or choose to withdraw from the original
plea agreement; and the trial court could choose to withdraw its
prior approval of the plea agreement. (Ibid.)
Here, the trial court did not disobey the remittitur. The
prosecutor urged the trial court to follow Mitchell, and the court
did mention Mitchell at the hearing. However, the court also
acknowledged the new requirements for imposing the upper term
under section 1170(b)(2), observing that the statute was satisfied
where a defendant stipulates to the existence of aggravating
circumstances. The court found that such a stipulation was
implied in this case, and the court announced that it was
interpreting section 1170(b)(2) to mean that defendant’s 2021
stipulation supported the imposition of the upper term under the
10
statute. Read as a whole, the record shows that the court
followed the directions of our remittitur by attempting to
interpret and apply section 1170 as amended by Senate Bill 567.3
Nonetheless, remand is required because the trial court
erred in finding that section 1170(b)(2) was satisfied based on
defendant’s 2021 plea and his implicit stipulation “to the
existence of aggravating circumstances by agreeing to the upper
term.” (Fox, supra, 90 Cal.App.5th at p. 835.) Senate Bill 567
introduced new requirements for the imposition of the upper
term — that the finder of fact determine the existence of facts
underlying the aggravating circumstances or that there be a
stipulation as to the existence of such facts, and that the court
find that those circumstances in aggravation justify the
imposition of a term of imprisonment exceeding the presumptive
middle term. (§ 1170(b)(2)). As Fox explained, “[Defendant]
entered the plea agreement . . . before Senate Bill No. 567 altered
the requirements for imposing the upper term, and his
agreement to that term cannot be considered an admission that
sufficient aggravating circumstances exist.” (Fox, at p. 835.)
Finally, we do not find harmless error.4 The trial court
relied significantly on its erroneous determination that
defendant’s 2021 plea was both an implicit stipulation that
3 We note that we would reach the same disposition if, as
defendant suggests, we were to interpret the trial court’s actions
as disobeying our prior opinion and remittitur in favor of
Mitchell.
4 The Attorney General does not argue harmless error.
This silence appears to be an implicit concession that the error
was not harmless.
11
circumstances in aggravation justified the imposition of a term of
imprisonment exceeding the presumptive middle term and an
implicit stipulation to the existence of facts underlying the
circumstances in aggravation. The error thus affected the court’s
finding under section 1170(b)(2) that circumstances in
aggravation justified deviation from the statute’s presumptive
middle term, and it seems reasonably probable the court would
have rendered a more favorable ruling without the error. (People
v. Watson (1956) 46 Cal.2d 818, 836.)5
III. The Law of the Case Doctrine Applies
We next turn to the Attorney General’s claim that we
should adopt Mitchell and Sallee and reject our prior opinion
because of the “unjust decision exception” (People v. Stanley
(1995) 10 Cal.4th 764, 787) to the law of the case doctrine.
“ ‘ “The doctrine of the law of the case is this: That where,
upon an appeal, the [reviewing] court, in deciding the appeal,
states in its opinion a principle or rule of law necessary to the
decision, that principle or rule becomes the law of the case and
must be adhered to throughout its subsequent progress, both in
the lower court and upon subsequent appeal, and, as here
assumed, in any subsequent suit for the same cause of action,
and this although in its subsequent consideration this court may
5 We acknowledge that the court also said that use of the
firearm was sufficient to impose the upper term in this case.
However, the court’s subsequent statements emphasizing what it
“actually” believed about the import of defendant’s 2021 plea
leave us with serious doubt as to whether the error affected the
result.
12
be clearly of the opinion that the former decision is erroneous in
that particular.” ’ ” (People v. Stanley, supra, 10 Cal.4th at
p. 786.)
“The principal reason for the doctrine is judicial economy.
‘Finality is attributed to an initial appellate ruling so as to avoid
the further reversal and proceedings on remand that would result
if the initial ruling were not adhered to in a later appellate
proceeding.’ [Citation.] Because the rule is merely one of
procedure and does not go to the jurisdiction of the court
[citations], the doctrine will not be adhered to where its
application will result in an unjust decision, e.g., where there has
been a ‘manifest misapplication of existing principles resulting in
substantial injustice’ [citation], or the controlling rules of law
have been altered or clarified by a decision intervening between
the first and second appellate determinations [citation]. The
unjust decision exception does not apply when there is a mere
disagreement with the prior appellate determination.” (People v.
Stanley, supra, 10 Cal.4th at pp. 786–787, italics added.)
Here, the law of the case doctrine applies, and the unjust
decision exception is inapplicable. Our prior opinion necessarily
determined that Senate Bill 567 afforded defendant, who entered
into a plea agreement with a stipulated sentence before the bill
became effective, the ability to seek relief on remand. (People v.
Henry, supra, A164012.) Mitchell and Sallee disagreed with this
determination, finding that defendants who agreed to a
stipulated sentence before the effective date of Senate Bill 567
are not entitled to any relief. (Mitchell, supra, 83 Cal.App.5th at
13
pp. 1057–1059; People v. Sallee, supra, 88 Cal.App.5th at
pp. 340–341.) However, this disagreement does not constitute a
change in controlling law sufficient to invoke the unjust decision
exception to the law of the case doctrine. (See People v. Stanley,
supra, 10 Cal.4th at p. 787 [stating unjust decision exception
requires change in controlling law].)6
Accordingly, we conclude that a remand is required in this
case. On remand, the trial court must determine whether the
upper term can be imposed in compliance with section 1170(b)
and Fox — meaning that, except as to prior convictions based on
a certified record of conviction (§ 1170(b)(3)), the upper term may
be based only on aggravating circumstances that have been
6 The Attorney General also relies on People v. Brooks
(2020) 58 Cal.App.5th 1099 (Brooks), but this reliance is
misplaced. In Brooks, a panel of this division held that a
defendant serving a stipulated sentence was not entitled to
resentencing under section 1170.91. (Brooks, at p. 1109.) Section
1170.91 requires consideration of trauma resulting from military
service as a mitigating factor when a court exercises determinate
sentencing triad discretion. (Brooks, at p. 1104.) But section
1170(b) does not merely add specific factors to be considered
among many in the trial court’s sentencing determination. In
Brooks, the plea bargain resulted in a sentence that was within
the boundaries of the Penal Code’s sentencing structure. Here,
the imposition of the aggravated term is outside the discretion of
the sentencing court unless section 1170(b)’s prerequisites are
met or waived because the aggravated term cannot be imposed
absent the court’s finding of those circumstances. (§ 1170(b)(1)–
(3); People v. Todd, supra, 88 Cal.App.5th at p. 379.) Further, the
Attorney General did not raise Brooks in the prior appeal and
does not show that any exception to the law of the case doctrine is
applicable.
14
(1) stipulated to by defendant independent of his 2021 plea to the
upper term, or (2) found true beyond a reasonable doubt at trial
by the jury or by the judge in a court trial if defendant agrees to a
court trial. If the trial court, having considered the requirements
and permissible factors under section 1170(b) (including section
1170(b)(6) should defendant raise its provisions on remand),
again imposes the upper-term sentence, defendant’s sentence
would stand. If the court indicates that consideration of the
requirements and permissible factors would not support
imposition of the upper-term sentence, the prosecutor may then
either agree to modify the bargain to reflect the downward
departure in the sentence, or choose to withdraw from the
original plea agreement, and the court may choose to withdraw
its prior approval of the plea agreement.
We note that our disposition and our prior opinion are
consistent with section 1016.8, which codified the rule that the
fact that “the parties enter into a plea agreement does not have
the effect of insulating them from changes in the law that the
Legislature has intended to apply to them,” and clarified that any
“provision of a plea bargain that requires a defendant to
generally waive future benefits of legislative enactments,
initiatives, appellate decisions, or other changes in the law that
may retroactively apply after the date of the plea is void as
against public policy.” (§ 1016.8, subd. (a)(1), (b); Stamps, supra,
9 Cal.5th at p. 705.)
15
DISPOSITION
The judgment is reversed and remanded for further
proceedings consistent with this opinion.
BROWN, P. J.
WE CONCUR:
STREETER, J.
DOUGLAS, J.
People v. Henry (A168133)

Judge of the Superior Court of California, County of
Contra Costa, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
16