2022 Law Limiting High Term Sentences May Gut Plea Deals

Tuesday, May 19, 2026

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California Supreme Court:

2022 Law Limiting High Term Sentences May Gut Plea Deals

Opinion Says Statute Requiring Findings of Aggravating Factors Applies to Pre-Adoption, Non-Final Judgments Even if Defendant Agreed to Longer Incarceration in Exchange for Dismissal of More Serious Charges

By Kimber Cooley, associate editor

The California Supreme Court held yesterday that amendments to Penal Code §1170(b), adopted in 2022, that limit a sentencing judge to the middle term absent a stipulation by the defendant or jury findings as to certain aggravating circumstances apply to all non-final judgments even if a high term was imposed as part of a pre-enactment, negotiated plea deal that resulted in more serious charges being dismissed.

Rejecting the view that the defendant’s agreement to give up her right to a jury trial on the underlying charges amounts to an implied waiver of rights under the new law, the high court declared that a defendant “cannot be said to have waived” a right which did not exist at the time she entered her plea. Writing for the unanimous court, Justice Carol Corrigan opined:

“The resolution here…turns on the nature of the rights [the defendant] waived when she accepted the bargain. We conclude she cannot be said to have waived the later-created right, which applies retroactively to her nonfinal judgment, and of which she was not, and could not have been, made aware.”

However, she added:

“[A] plea bargain that includes a stipulated upper term sentence absolves the trial court of its duty to determine that the sentence is justified by facts found in compliance with section 1170(b)(2)’s provisions. But this is only true if the defendant, in entering the plea bargain, validly waives [those] requirements.”

As to remedy, the jurist opined that the parties should be returned to the bargaining table, saying:

“Absent a modified agreement and approval, [the defendant’s] remedy is to withdraw her assent to the bargain, in which case [the] 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.”

No-Contest Plea

The question arose after Sunee Mitchell pled no contest in July 2021 to a single felony count of driving with willful or wanton disregard for safety while evading a police officer, in violation of Vehicle Code §2800.2(a), as well as a misdemeanor drunk-driving count. She had been charged with four felony counts, including two strike offenses, relating to the November 2020 incident in which she drove over a man’s feet and nearly collided with a patrol vehicle.

Mitchell agreed to the plea in exchange for a six-year prison sentence, representing a doubled high term on the §2800.2(a) count due to a prior robbery conviction, and a dismissal of the other felony counts. Mendocino Superior Court Judge Victoria Shanahan sentenced her in accordance with the agreement on Aug. 11, 2021.

The amendments to Penal Code §1170(b) passed while her appeal was pending. That section now provides:

“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….”

Subdivision (2) specifies that “[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation…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,” unless the factor at issue is a prior conviction, in which case no jury findings are required.

The amendments amount to a modified return to a previous sentencing regime, which required the imposition of the middle term absent judicial findings of circumstances in aggravation or mitigation. In 2007, the U.S. Supreme Court, in Cunningham v. California, declared that the system violated the Sixth Amendment.

After Cunningham was decided, the Legislature opted to eliminate the aggravating-factors language rather than require that the circumstances justifying the imposition of a high term be found true by a jury. The 2022 amendments reflected a legislative decision to reverse course based on stated concerns over a trend toward “mass incarceration.”

First District Decision

In 2022, Div. Five of the First District Court of Appeal upheld Mitchell’s conviction and sentence, finding that the changes to §1170(b) did not apply to “stipulated plea[s].” Yesterday’s opinion reverses that judgment and declares that the 2023 decision by the Fifth District in People v. Sallee, which came to a similar conclusion, is disapproved.

Saying that there was no dispute that the changes to §1170(b) apply retroactively, Corrigan noted:

“[T]he Attorney General argues that, ‘[b]y agreeing to a specific term of imprisonment,’ Mitchell ‘implicitly waived’ any right to be sentenced in accordance with section 1170(b) and is therefore ‘estopped’ from invoking that statute ‘to challenge the imposition of the sentence [that] she agreed to and…the court had—and still has—fundamental jurisdiction to impose.”

Unpersuaded, the jurist pointed to Penal Code §1016.8, adopted in 2020, which declares:

“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.”

Based on that provision, she opined:

“By its terms, section 1016.8 governs plea bargains that expressly waive unknown future benefits of ameliorative legislation. Here, there was no such express waiver. But it stands to reason that we should not, by implication, find a waiver of unknown future benefits that could not have been entered into expressly. Interpreting the provisions of section 1170(b) in light of section 1016.8, we conclude that the fact the parties entered into a plea agreement ‘does not have the effect of insulating them’ from the retroactive changes enacted by [the amendments to §1170(b)].”

However, Corrigan added:

“[W]e hold that a plea bargain that includes a stipulated upper term sentence absolves the trial court of its duty to determine that the sentence is justified by facts found in compliance with section 1170(b)(2)’s provisions. But this is only true if the defendant, in entering the plea bargain, validly waives section 1170(b)’s requirements.”

She continued:

“The appropriate remedy is to allow Mitchell to reconsider her plea in light of the change. If she chooses to keep the bargain she negotiated, she may affirm her agreement and enter the appropriate waivers of section 1170(b)’s current requirements. Alternatively, she may withdraw her assent to the bargain and return the parties to a pre-plea posture, where the prosecutor will be held to its burden of proof. In no scenario, however, is she entitled to a unilateral reduction of her upper term sentence to the middle term.”

Justice Daniel H. Bromberg of the Sixth District Court of Appeal, sitting by assignment, joined in the decision.

The case is People v. Mitchell, 2026 S.O.S. 1363.