Unreported / Non-Citable
Background
Dennis Anthony Weldon was arrested for disturbing the peace at a veteran's clinic. During that arrest, he refused to walk to the patrol car and threatened to kill not only the arresting sheriff's deputy but the deputy's family as well. Deputies also found a knife in Weldon's jacket pocket. Weldon pleaded no contest to resisting arrest under Penal Code section 69 and attempted criminal threats under sections 422 and 664. The negotiated disposition called for the upper term of three years on the resisting-arrest count and four months on the attempted-threats count. The trial court suspended the sentence for a period of two years while Weldon was on probation, with conditions including abstention from alcohol. Two months later, deputies responding to a domestic dispute involving Weldon noticed his speech was slurred and his eyes were glassy. They arrested him and administered a preliminary alcohol screening test that registered a blood alcohol content of 0.043. After a hearing, the court found a probation violation and imposed the previously suspended aggregate term of three years and four months in state prison.
Weldon argued on appeal that his sentence had to be vacated and the matter remanded because Senate Bill No. 567's amendments to section 1170 applied to his case. Division Six previously affirmed the judgment in an unpublished December 21, 2023 opinion. The California Supreme Court subsequently transferred the matter for reconsideration in light of People v. Mitchell (2026) 19 Cal.5th 729. The Court of Appeal vacated its earlier decision and allowed supplemental briefing. The Attorney General filed a supplemental letter brief on October 7, 2026, explaining that remand was the proper remedy under Mitchell; Weldon did not file a supplemental brief.
The Court’s Holding
The court explained that Senate Bill No. 567 made the middle term the presumptive term of imprisonment. Under amended section 1170(b), a sentence exceeding the middle term requires circumstances in aggravation that justify that sentence, with the underlying facts either stipulated to by the defendant or found true beyond a reasonable doubt by the jury, or by the judge in a court trial. The amendments generally apply retroactively to nonfinal cases, and Mitchell specifically extended that retroactive application to stipulated upper-term sentences imposed through plea agreements in cases not final on appeal. Consequently, unless a defendant validly waived section 1170(b)'s new requirements when entering the plea, the judgment must be reversed and remanded.
Applying that rule, the court held that Weldon had not validly waived the new requirements because they did not yet exist when he was originally sentenced. It therefore reversed the judgment and ordered further proceedings in which Weldon may either waive or invoke those requirements. If he reaffirms the original bargain and newly waives section 1170(b), the trial court must reinstate the negotiated sentence. If he declines, the parties may agree to modify the plea to a sentence without an upper term. Without a modified agreement approved by the trial court, Weldon may withdraw his assent; the court must then set aside the plea and the matter must proceed as if no plea had been entered, leaving the parties free to renegotiate or proceed to trial.
Key Takeaways
- A defendant sentenced before Senate Bill No. 567's requirements existed cannot have validly waived those requirements when entering the original plea.
- Mitchell's retroactivity rule reaches stipulated upper-term sentences imposed through negotiated plea agreements in cases that were not final on appeal.
- Weldon can preserve the original three-year-four-month sentence only by reaffirming the plea bargain and entering a new waiver of section 1170(b)'s requirements.
- If Weldon does not waive those requirements, the parties may seek court approval of a modified agreement that does not include an upper term.
- Absent an approved modification, Weldon's remedy is withdrawal of his assent, after which the plea must be set aside and the prosecution may be renegotiated or tried.
Why It Matters
This unpublished opinion applies Mitchell to a negotiated sentence that became operative after probation was revoked, rather than treating the stipulated disposition as immune from amended section 1170(b). The decisive point is the impossibility of an earlier valid waiver of statutory protections that did not yet exist, not a new factual finding about aggravation or a determination that Weldon must receive a lower sentence.
The remand directions also define the practical consequences for both sides. The prosecution and trial court can retain the original bargain if Weldon reaffirms it with a new waiver, while Weldon can invoke the amended statute, pursue a modified agreement, or withdraw from the plea. The opinion does not itself select among those options, decide any future waiver, or resolve the proceedings that may follow withdrawal.