1

Filed 6/28/23 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DALLAS BROOKS ACHANE,

Defendant and Appellant.

 A165968

 (Humboldt County Super. Ct. Nos.

 CR2102494, CR2001294, CR1905885)

After finding Dallas Brooks Achane violated probation, the trial court 

ordered him to serve a sentence that previously had been imposed with 

execution of sentence suspended. The sentence included an upper term. 

Achane contends he is entitled to resentencing under legislation enacted after

the initial imposition of sentence that limits trial courts’ discretion to impose 

an upper term sentence and, in certain circumstances, creates a presumption 

in favor of a lower term sentence. As we will explain, Achane forfeited his 

claims by failing to assert them in the trial court. Accordingly, we affirm.

BACKGROUND

The facts underlying Achane’s offenses are not relevant to the issues on 

appeal and need not be recited. In January 2020, Achane pleaded guilty to a 

charge of willfully inflicting corporal injury on a spouse or cohabitant 

(Pen. Code, § 273.5, subd. (a))1 in case No. CR1905885 (case 1). On 

February 4, 2020, the trial court sentenced him to an upper term sentence of 

1 Further statutory references are to the Penal Code.
2

four years, and then suspended execution of sentence and placed Achane on 

probation. 

On August 6, 2020, in case No. CR2001294 (case 2), Achane pleaded 

guilty to one count of stalking (§ 646.9, subd. (a)) and admitted violating 

probation in case 1. On August 24, 2020, the trial court suspended 

imposition of sentence and placed Achane on probation. 

On August 31, 2021, in case No. CR2102494 (case 3), Achane pleaded 

guilty to a charge of obstructing an executive officer (§ 69). On October 21, 

2021, the trial court suspended imposition of sentence, placed Achane on 

probation, and found his guilty plea was an admission that he violated 

probation in cases 1 and 2. 

On March 11, 2022, the probation department filed petitions to revoke 

probation in all three cases. The petitions alleged that on March 9, 2022, 

Achane carried a loaded firearm in public (§ 25850, subd. (a)), carried a 

concealed firearm on his person (§ 25400, subd. (a)(2)), unlawfully possessed 

a firearm (§ 29800, subd. (b)), unlawfully possessed ammunition (§ 30305, 

subd. (a)), purchased, sold, possessed or transferred an unmarked firearm 

(§ 23920), resisted arrest (§ 148, subd. (a)(1)) and possessed a controlled 

substance while armed with a firearm (Health & Saf. Code, § 11370.1, 

subd. (a)). 

These new charges were tried to a jury in case No. CR2200716. On 

July 15, 2022, the trial court declared a mistrial after the jury deadlocked, 

then on the basis of the evidence presented at trial found Achane violated 

probation and revoked probation in cases 1, 2 and 3. 

On July 28, 2022, the sentencing hearing was held in Achane’s absence 

after he told the court he did not wish to remain in the courtroom. The court 

acknowledged that the probation department recommended reinstating 
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probation but stated a tentative decision to order Achane to serve a prison 

term of five years and four months. The court stated its reasons: Achane had 

sustained three violations of probation since the 2020 case; the probation 

report characterized his performance on probation as “poor” and reflected 

that he had not shown “any evidence of making positive lifestyle changes,” he 

had not completed his court-ordered batterer’s intervention program, he 

continued to “use and abuse methamphetamine,” he had “only reported 

sporadically” to the probation department and he absconded prior to 

completing an inpatient treatment program; and on March 3, 2022, the court 

had found Achane in possession of a firearm after he had sustained seven 

prior felony convictions. Defense counsel urged the court to follow the 

probation department’s recommendation, stated her understanding that 

Achane would seek to enroll in an inpatient treatment program and noted the 

probation report’s statement that Achane had been “going through serious 

family issues.” The prosecutor expressed puzzlement at the probation 

department’s recommendation given its report on Achane’s poor performance 

and argued he had done nothing to change his “criminalistic lifestyle” despite 

being given multiple opportunities. 

The court followed its tentative decision and ordered Achane to serve 

the previously suspended four-year aggravated term in case 1 and 

consecutive eight-month, one-third middle terms in cases 2 and 3, for the

total of five years and four months. 

Achane filed a timely notice of appeal on August 17, 2022. 
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DISCUSSION

I.

Background

As noted, in February 2020, the trial court sentenced Achane to an 

upper term sentence of four years and then suspended execution of sentence 

and placed him on probation. At that time, section 1170, subdivision (b), 

gave trial courts broad discretion to decide which of the three terms specified 

for an offense would best serve the interests of justice. (See former § 1170, 

subd. (b), as amended by Stats. 2020, ch. 29, § 14.)

Subsequently, effective January 1, 2022, section 1170 was amended in 

several respects, two of which are relevant to this case. First, Senate Bill 

No. 567 (2021–2022 Reg. Sess.) made the middle term of imprisonment the 

presumptive sentence. (§ 1170, subd. (b)(2), as amended by Stats. 2021, 

ch. 731, § 1.3.) Under the amended statute, “[a] trial court may impose an 

upper term sentence only where there are aggravating circumstances in the 

crime and the defendant has either stipulated to the facts underlying those 

circumstances or they have been found true beyond a reasonable doubt.

(§ 1170, subd. (b)(1)–(2).)” (People v. Flores (2022) 75 Cal.App.5th 495, 500.) 

The sentencing court may also rely on certified records of conviction without 

having to submit the prior convictions to the jury. (Ibid.; § 1170, subd. (b)(3).)

Second, Assembly Bill No. 124 (2021–2022 Reg. Sess.) created a 

presumption in favor of the lower term where specified circumstances were 

“contributing factor[s] in the commission of the offense,” unless the trial court 

finds that “the aggravating circumstances outweigh the mitigating 

circumstances that imposition of the lower term would be contrary to the 

interests of justice.” (§ 1170, subd. (b)(6); Stats. 2021, ch. 695, § 5.) One of 

the specified circumstances is that the defendant “has experienced 
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psychological, physical, or childhood trauma, including, but not limited to, 

abuse, neglect, exploitation, or sexual violence.” (§ 1170, subd. (b)(6)(A).) 

Under the principles of In re Estrada (1965) 63 Cal.2d 740 (Estrada), 

because these amendments made ameliorative changes to the law, they apply 

retroactively to all cases that were not final as of their effective date, 

January 1, 2022. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 

308; People v. Flores (2021) 73 Cal.App.5th 1032, 1039.) Achane argues the 

sentence he was ordered to serve on July 28, 2022, violates section 1170, as 

amended, in that the upper term sentence imposed for his conviction under 

section 273.5 was not based on any aggravating factor that he admitted, a 

jury or judge found true beyond a reasonable doubt or was shown by a 

certified record of a prior conviction. (§ 1170, subds. (b)(1), (2), (3).) He also 

argues the record shows he suffered trauma triggering the presumption 

favoring a lower term sentence. (§ 1170, subd. (b)(6)(A).) He contends that 

he is entitled to resentencing for retroactive application of the amendments 

because his case was not final when they became effective. (People v. 

Esquivel (2021) 11 Cal.5th 671, 673 (Esquivel).) 

II.

Achane Is Not Entitled to Resentencing.

The parties agree that this case was not final at the time the trial court 

ordered into effect the sentence imposed in 2020. (Esquivel, supra, 11 Cal.5th 

at p. 673.) Esquivel held that a case in which “a defendant is placed on 

probation with execution of an imposed state prison sentence suspended is 

not yet final” for purposes of retroactive application of an ameliorative 

sentencing law “if the defendant may still timely obtain direct review of an 

order revoking probation and causing the state prison sentence to take 

effect.” (Ibid.) In Esquivel, the defendant initially received a sentence that 
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included one-year enhancements for prior prison terms and was placed on 

probation with execution of sentence suspended. (Ibid.) He subsequently 

violated probation and the previously imposed sentence was ordered into 

effect. (Ibid.) While his appeal from that order was pending, a statutory 

amendment became effective under which his priors were not subject to the 

one-year enhancement. (Ibid.) Esquivel held the ameliorative amendment 

applied retroactively. (Esquivel, at p. 680.)

The present case is like Esquivel in that Achane, too, was initially 

placed on probation with execution of an imposed sentence suspended and 

subsequently ordered to serve the previously imposed sentence upon 

revocation of probation. Unlike the situation in Esquivel, however, the 

statutory amendments Achane seeks to apply retroactively had already been 

in effect for almost seven months by the time he was ordered to serve the 

prison sentence imposed in 2020. Achane could have asked the trial court at 

the sentencing hearing on July 28, 2022, to apply the section 1170 

amendments retroactively to the 2020 upper term sentence, but he did not do 

so. The People argue this means Achane’s retroactivity argument is 

misplaced; Achane is not entitled to resentencing because he forfeited his 

objection to the sentence imposed in 2020.

Achane argues the issue is cognizable on appeal because objection 

would have been futile (People v. Welch (1993) 5 Cal.4th 228, 237), since a 

court ordering into effect a sentence previously imposed with execution 

suspended has no authority to order a lesser sentence (People v. Bolian (2014) 

231 Cal.App.4th 1415, 1420-1421). Further, Achane argues the forfeiture 

doctrine does not apply because he is challenging the upper term sentence as 

unauthorized and unauthorized sentences are not subject to forfeiture. 
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(People v. Scott (1994) 9 Cal.4th 331, 354.) Neither of these points is 

persuasive. 

A. The Unauthorized Sentence Exception to the Forfeiture

Doctrine Is Inapplicable.

“[A] sentence is generally ‘unauthorized’ where it could not lawfully be 

imposed under any circumstance in the particular case.” (People v. Scott,

supra, 9 Cal.4th at p. 354.) The California Supreme Court in In re G.C.

(2020) 8 Cal.5th 1119, 1130, explained the rationale for “this ‘narrow’ 

category of nonforfeitable error”: “The appellate court may intervene in the 

first instance because these errors ‘present[ ] “pure questions of law”

[citation], and [are] “ ‘clear and correctable’ independent of any factual issues 

presented by the record at sentencing” ’ and without ‘remanding for further 

findings.’ [Citation.] The rule exists because correction of sentencing error 

that is evident from the record and needing no redetermination of facts does 

not significantly impact the state’s interest in finality of judgments. 

[Citation.] ‘In such circumstances, an individual’s interest in obtaining 

judicial review of an allegedly illegal sentence cannot be ignored.’ [Citation.]”

The claimed error in the present case does not fit either the definition 

of an unauthorized sentence or the rationale for this exception to the 

forfeiture rule. Under the amended section 1170, subdivision (b), an upper 

term may be imposed if based on an aggravating circumstance admitted by 

the defendant, found true beyond a reasonable doubt by the trier of fact or a 

certified record of a prior conviction. When the amendment is applied 

retroactively to a case in which the upper term is not supported by one or 

more aggravating factors established by this standard, the remedy is a 

remand for resentencing. Although the previously imposed upper term 

cannot stand, the trial court on remand can again impose the upper term if at 

least one aggravating factor is properly established by admission, finding 
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beyond a reasonable doubt or certified record of conviction and the trial court 

exercises its discretion in accordance with section 1170, subdivision (b)(2). 

(See People v. Lopez (2022) 78 Cal.App.5th 459, 468 [remand for exercise of 

discretion under amended § 1170; absent stipulation by defendant, People 

may elect to prove aggravating factors beyond a reasonable doubt or accept 

resentencing on current record].) Thus, the upper term is not a sentence that 

“could not lawfully be imposed under any circumstance in the particular 

case.” (People v. Scott, supra, 9 Cal.4th at p. 354.) Nor does the error present 

a pure question of law that can be corrected “ ‘ “independent of any factual 

issues presented by the record at sentencing” ’ and without ‘remanding for 

further findings.’ ” ’ ” (In re G.C., supra, 8 Cal.5th at p. 1130.)

The situation is no different regarding Achane’s claim that he is 

entitled to have the trial court consider applying the presumption in favor of 

a lower term sentence under section 1170, subdivision (b)(6). This provision

applies if one of the enumerated circumstances “was a contributing factor in 

the commission of the offense”—here, that the defendant “has experienced 

psychological, physical, or childhood trauma, including, but not limited to, 

abuse, neglect, exploitation, or sexual violence”—and the court does not find

aggravating circumstances outweigh “the mitigating circumstances that 

imposition of the lower term would be contrary to the interests of justice.” 

(Ibid.) A trial court’s decision whether to apply this provision thus depends 

on both factual determinations and the exercise of discretion. A sentence 

imposed without consideration of section 1170, subdivision (b)(6), is not one 

that “could not lawfully be imposed under any circumstance in the particular 

case” (People v. Scott, supra, 9 Cal.4th at p. 354) and does not present a 

question of law that can be corrected “ ‘ “independent of any factual issues 

presented by the record at sentencing” ’ and without ‘remanding for further 
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findings.’ ” ’ ” (In re G.C., supra, 8 Cal.5th at p. 1130.) Again, the remedy for 

a sentence imposed without consideration of this provision is remand for 

resentencing. (People v. Banner (2022) 77 Cal.App.5th 226, 242.)

Achane cannot escape the consequences of his failure to object by 

relying on the unauthorized sentence exception to the forfeiture doctrine.

B. Achane Has Not Demonstrated Objection Would Have Been 

Futile.

“Reviewing courts have traditionally excused parties for failing to raise 

an issue at trial where an objection would have been futile or wholly 

unsupported by substantive law then in existence.” (People v. Welch, supra,

5 Cal.4th at p. 237.) Achane contends it would have been pointless for him to 

challenge the upper term imposed in 2020 when his probation was revoked 

because the trial court ordering the previously imposed sentence into effect 

had no authority to alter the original sentence. (People v. Bolian, supra,

231 Cal.App.4th at pp. 1420-1421.) He relies on the generally applicable rule 

that “[w]hen a trial court revokes and declines to reinstate probation after 

having imposed sentence but suspended its execution during the period of 

probation, the court ‘must order that exact sentence into effect.’ ” (In re

Renfrow (2008) 164 Cal.App.4th 1251, 1253, quoting People v. Howard (1997)

16 Cal.4th 1081, 1088 (Howard); § 1203.2, subd. (c).) 

Achane fails to appreciate that Esquivel, the authority he relies on in

arguing his case is not final for purposes of retroactivity of the section 1170

amendments, negates his futility argument. As in Esquivel, “[t]he question

in this case arises because ameliorative legislation took effect after the initial

time for defendant to challenge his [original] sentence had elapsed, but before

the conclusion of his appeal from the [subsequent] decision ordering that

sentence into effect.” (Esquivel, supra, 11 Cal.5th at p. 676.) Esquivel held

the defendant was entitled to retroactive application of the ameliorative
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legislation because “a case in which a defendant is placed on probation with

execution of an imposed state prison sentence suspended is not yet final for

[the] purpose [of Estrada retroactivity] if the defendant may still timely

obtain direct review of an order revoking probation and causing the state

prison sentence to take effect.” (Id. at p. 673.) 

The Esquivel court made only brief mention of the rule that a court

ordering into effect a sentence previously imposed with execution suspended

lacks authority to order anything other than that exact sentence: “True,

there are some constraints on a trial court’s ordinary discretion to modify

suspended execution sentences. (See Howard, supra, 16 Cal.4th 1081.) But

those constraints are statutory, and in any event, defendants entitled to the

benefit of ameliorative legislation may be able to obtain relief by other

procedural means. (People v. Buycks (2018) 5 Cal.5th 857, 895.)” (Esquivel,

supra, 11 Cal.5th at p. 679.) These comments reference the distinction

discussed in Esquivel between finality of a judgment of conviction, which

underlies the usual rule that a previously imposed sentence cannot be

altered,

2 and “finality of the ‘ “case[ ]” ’ or ‘ “prosecution[ ][,]” ’ ” which is the

determinative factor for Estrada retroactivity. (Id. at p. 678, quoting People

2 As Howard explained, “[w]hen the trial court suspends imposition of 

sentence, no judgment is then pending against the probationer, who is subject 

only to the terms and conditions of the probation.” (Howard, supra,

16 Cal.4th at p. 1087.) “The probation order is considered to be a final 

judgment only for the ‘limited purpose of taking an appeal therefrom’ ” and, 

on revocation of probation, the court may “ ‘pronounce judgment for any time 

within the longest period for which the person might have been sentenced.’ ” 

(Ibid.) In contrast, “where a sentence has actually been imposed but its 

execution suspended, ‘The revocation of the suspension of execution of the 

judgment brings the former judgment into full force and effect . . . .’ 

[Citations.]” (Ibid.) 
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v. McKenzie (2020) 9 Cal.5th 40, 46.)3 In short, the principles underlying the

presumption of retroactive application of ameliorative legislation overcome

the usual rule that a previously imposed execution suspended sentence

cannot be later modified when probation is revoked.4

Achane makes no attempt to explain his insistence that the trial court

lacked authority to modify the previously imposed execution suspended

sentence in the face of Esquivel’s holding that ameliorative legislation applies

retroactively to suspended execution sentences as long as the defendant “may

still timely obtain direct review of an order revoking probation and causing

the state prison sentence to take effect.” (Esquivel, supra, 11 Cal.5th at

p. 673.) As far as we can tell, the only distinction between Achane’s situation

and the one addressed in Esquivel is that the ameliorative legislation here

3 The Esquivel court noted, “[w]hether the imposition of defendant’s 

suspended execution sentence gave rise to a final judgment for purposes of 

appealability says little about whether the criminal prosecution or proceeding 

had concluded—and, thus, says little about whether the matter is “final” for 

purposes of Estrada. (Esquivel, supra, 11 Cal.5th at p. 679.)

4 By contrast, the usual rule applies for subsequently enacted 

legislation that was intended to have only prospective effect. People v. Scott 

(2014) 58 Cal.4th 1415, involved the Criminal Justice Realignment Act of 

2011, which provided that certain felony offenders would serve their 

sentences in county jail, or partly in county jail and partly under mandatory 

supervision, rather than in prison. (Scott, at pp. 1418-1419.) Scott held that 

the Realignment Act did not apply to defendants who had sentences imposed 

with execution suspended prior to the legislation’s effective date, then after 

the effective date had probation revoked and were ordered to serve the 

previously imposed sentences. (Scott, at p. 1419.) The Realignment Act 

specified that it was to be applied “prospectively to any person sentenced on 

or after” its effective date. Scott held that a defendant “is ‘sentenced’ when a 

judgment imposing punishment is pronounced even if execution of the 

sentence is then suspended” and, under Howard, supra, 16 Cal.4th 1081, the 

sentence ordered on revocation of probation must be exactly the one 

previously imposed. (Scott, at pp. 1423-1424.) 
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became effective before the revocation proceedings while in Esquivel the new

legislation went into effect during the pendency of the defendant’s appeal

from the revocation orders. That distinction—while critical with respect to

when each defendant could raise the issue—is irrelevant with regard to the

trial court’s authority. Esquivel’s holding that the defendant was entitled to

retroactive application of the new legislation necessarily confirms that trial

courts have authority to act in accordance with Estrada’s presumption of

retroactivity when ameliorative legislation becomes effective after imposition

of the suspended execution sentence and prior to probation revocation

proceedings.

Achane’s probation was revoked and his previously imposed sentence

ordered into effect over a year after Esquivel was decided and almost seven

months after the section 1170 amendments became effective. Esquivel

offered direct, controlling authority for Achane to argue the trial court should

apply the section 1170 amendments retroactively to his previously imposed

sentence notwithstanding the usual limitation on its authority to modify a

suspended execution sentence. Achane offers no persuasive reason why the

usual forfeiture rules should not apply to his failure to raise his retroactivity

argument in the trial court when he could and should have done so.

DISPOSITION

The judgment is affirmed.
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STEWART, P.J.

We concur.

MILLER, J.

MARKMAN, J. *

People v. Achane (A165968)

*

 Judge of the Alameda Superior Court assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.
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Trial Court:Humboldt County Superior Court

Trial Judge: Hon. John T. Feeney

Counsel: 

Mi Kim, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Jeffrey M. Laurence, Assistant Attorney General, Katie Stowe and 

Claudia H. Amaral, Deputy Attorneys General, for Plaintiff and Respondent.