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. No s

. 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 senten ce 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 court s’ 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

c laims 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. CR19058 85 (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 hi s per son (§ 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 p ossessed 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 wa s 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 reinstating3

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

probatio n department’s recommend ation, stated her understanding that

Achane would s eek 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 puzz lement at the probation

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

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

being given multiple opportunities.

The court followed its tentative decisio n and ordered Achane to serve

the previously suspended four

- year aggravated term in case 1 and

consecutive eight

- month

, one

- third middle term s in case s 2 and 3, for the

total of five years and four months.

Achane filed a timely notice of appeal on August 17, 2022.4 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 court s 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 ma y 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

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

the specified circumstances is that the defendant “has experienced5

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

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

U nder 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 effecti ve 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 re sentencing 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 I

s N ot Entitled t o Resentencing

.

The parties agree that this cas e 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 r evoking probation and causing the state prison sentence to take

effect. ” ( Ibid. ) In Esquivel

, the defendant initially received a sentence that6

included one

- year enhancements for prior prison terms and was placed on

probation with execution of sentence su spended

. ( 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 a t

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 senten ce previously imposed with execution

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

231 Cal.App.4th 1415, 1420

- 1421 )

. Further, Achane argues t he forfeiture

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

unauthorized and unauthorized sente nces are not subject to forfeiture.7

( People v. Scott ( 1994) 9 Cal.4th 331, 354.) Neither of these points is

persuasive.

A. The Unauthorized Sentence Exception to the Forfeiture

Doctrine I s 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 c ircumstance 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 agg ravating 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, finding8

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.5 th at p. 1130.)

The situation is no different regarding A chane ’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, s ubdivision (b)(6) . This provision

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

th e commission of the offense”

— here, that the defendant “h as 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 outw eigh “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 further9

findings. ’ ” ’ ” ( In re G.C.

, supra

, 8 Cal.5 th at p. 1130.) Again, the remedy for

a sentenc e 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 f ailure to object by

re lying 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 p p

. 1420

- 1421. ) He relies on the generally applicable rule

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

ha ving imposed sentence but suspended its execution during the period of

probation, the court ‘ must order that exact sentence into effect

. ’ ” ( In re

Renfr ow (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

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

amendments, negates his futility argument. As in E s quivel, “ [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

sentenc e into effect. ” ( Esquivel

, supra

, 11 Cal.5 th at p. 676.) Esquivel held

the defendant was entitled to retroactive application of the ameliorative10

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

l acks authority to order anything other than th at 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 .) Th ese 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.” ( H oward

, 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 lon gest 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 fu ll force and effect

. . . . ’

[Citations.]” ( Ibid .)11

v. McKenzie (2020) 9 Cal.5th 40, 46 .) 3 In short, the principles underlying the

presumption of retroactive application of am eliorative 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 s tate prison s entence 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]h ether 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 p p . 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 ex actly the one

previously imposed. ( Scott

, at pp. 1423

- 1424.)12

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. T hat 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 t he defendant was entitled to

retroactive application of the new legislation necessarily confirms that trial

courts have authority to a ct 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 h is failure to raise his retroactivity

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

DISPOSITION

The judgment is affirmed.13 STEWART, P. J.

We concur.

MILLER , J.

M ARKMAN , J. *

P eople v. Achane (A1 65968 )

* Judge of the Alameda Superior Court assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.14

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.