People v. Mitchell CA2/5

Filed 7/23/21 P. v. Mitchell CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B309107
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA477472)
v.
GREGORY JEROME
MITCHELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mildred Escobedo, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
__________________________
Gregory Jerome Mitchell appeals from an order denying his
petition to set aside his plea for assault with a firearm and to be
resentenced under Penal Code section 1016.8. That statute
generally invalidates as part of a plea agreement any agreement
by the defendant to waive the benefit of future changes in the law
to which the defendant would otherwise be entitled.1 His
appointed counsel filed a brief pursuant to People v. Serrano
(2012) 211 Cal.App.4th 496, raising no issues. Mitchell filed a
supplemental brief arguing that by the terms of the plea
agreement, his trial counsel improperly waived his “future
benefits, the right to trial, and the right to cross examine
witnesses.” Because section 1016.8 does not apply to cases final
on appeal, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 20, 2019, Mitchell pleaded guilty to assault
with a firearm, admitted he previously had been convicted of
assault with a deadly weapon, which qualified as a serious felony
and a strike, and admitted he personally used a firearm in the
current case. Pursuant to the plea agreement, the court
sentenced Mitchell to 23 years.
Prior to the plea, the trial court gave the standard
advisement of rights and informed Mitchell of the consequences
1 Penal Code section 1016.8, subdivision (b) states “A
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.”
All further undesignated statutory references are to the
Penal Code.
2
of the plea. Nothing in the record suggests the trial court or
counsel stated that defendant agreed to waive any benefits to him
occasioned by future changes in the law. Defendant was given a
straight sentence without probation, and none of the court’s
ancillary orders (e.g. prohibition against possession of firearms)
dealt with waiver of benefits of future changes in the law.
Mitchell did not appeal from the judgment of conviction.
On October 6, 2020, Mitchell filed a petition for
resentencing pursuant to Assembly Bill No. 1618.2 In his
petition, Mitchell stated:
“I request to take my plea back under a separate new
law[:] AB 1618 signed by the Governor in October
2019 provides that the benefits of these new laws
should be available in non-final cases even if the
person entered a plea bargain that included
agreement to a set sentence or a waive[r] [of] [‘]future
benefits of legislative enactments, initiatives,
appellate decision[s], or other changes in the law that
may retroactively apply after the date of the plea is
void as against public policy.’ (Pen. Code, § 1016.8
[subd.] (b).) However, the California Supreme Court
is reviewing the question of whether people who
entered [a] plea agreement can seek resentencing
under the new laws without first obtaining a
certificate of probable cause. (People v. Stamps
(2019) No. S255245; People v. Kelly No. [S]255145.)”
On October 8, 2020, the court denied Mitchell’s motion,
stating:
2 This act added section 1016.8 to Penal Code.
3
“The defendant was arraigned 6-27-2019. On that
date defendant was advised he was facing a
maximum confinement indeterminate term of 25
years to life. Nothing regarding a waiver of future
rights was ever mentioned []or discussed.”
On November 17, 2020, Mitchell filed a timely notice of
appeal from the denial of his section 1016.8 motion. We
appointed appellate counsel. After reviewing the record, counsel
filed an opening brief pursuant to People v. Serrano, supra,
211 Cal.App.4th 496, stating that he found no arguable issues to
raise on appeal and had informed Mitchell of his right to file a
supplemental brief on his own behalf. On March 22, 2021, we
advised Mitchell that he had 30 days to submit any contentions
or issues he wished us to consider. Mitchell filed supplemental
briefs on March 29, 2021 and April 1, 2021.3
DISCUSSION
When a defendant appeals the denial of post-conviction
relief and appellate counsel identifies no cognizable issues, the
Court of Appeal has “no independent duty to review the record for
reasonably arguable issues.” (People v. Cole (2020)
52 Cal.App.5th 1023, 1039.) “However, if the defendant files a
supplemental brief, the Court of Appeal is required to evaluate
any arguments presented in that brief and to issue a written
opinion that disposes of the trial court’s order on the merits . . . .”
(Id. at p. 1040.) Here, Mitchell filed two supplemental briefs
arguing he was entitled to resentencing under Assembly Bill
1618. Mitchell’s briefs did not contain a reasoned explanation of
his points, nor significant analysis of the law.
3 We authorized the filing of the second brief.
4
Assembly Bill 1618 enacted section 1016.8 and codified the
Supreme Court’s decision in Doe v. Harris (2013) 57 Cal.4th 64.
There, the Supreme Court held the fact the parties have entered
into a plea agreement does not insulate them from future
changes in the law intended to have retroactive effect. (See
People v. Stamps (2020) 9 Cal.5th 685, 704–705.) The court
stated that section 1016.8 “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. (b)).” (Id. at p. 705.) A plea bargain requiring such a
waiver is deemed not to be either knowing or intelligent.
(§ 1016.8, subd. (a)(4).)
We agree with the trial court’s express finding that nothing
in the record reflects that Mitchell’s plea included a provision
that section 1016.8 invalidates.
We have reviewed the record and are satisfied that
Mitchell’s appointed appellate counsel has fully complied with his
responsibilities and no arguable issues exist. (See People v. Cole
(2020) 52 Cal.App.5th 1023, 1039–1040, review granted Oct. 14,
2020, S264278; People v. Serrano, supra, 211 Cal.App.4th at
p. 503.)
DISPOSITION
The October 8, 2020, order denying Mitchell’s petition for
resentencing is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J. KIM, J.
5