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Name: People v. Achane (2023) 92 Cal.App.5th 1037
Case #: A165968
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 06/28/2023

Because defendant’s upper term sentence was not unauthorized and an objection to the sentence would not have been futile, defendant forfeited his request for resentencing under the recent amendments to Penal Code section 1170 by failing to raise the issues below. In 2022, defendant violated probation. The trial court ordered him to serve a sentence previously imposed in 2020, with execution of sentence suspended; that sentence included an upper term. On appeal, defendant argued he is entitled to resentencing for retroactive application of Senate Bill No. 567 and Assembly Bill No. 124, which were in effect at the time he was ordered to serve the prison sentence in 2022. He further argued the issue was not forfeited because the upper term constituted an unauthorized sentence, and any objection would be futile since a court ordering into effect a sentence previously imposed with execution suspended has no authority to order a lesser sentence. Held: Affirmed. A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance. This is not the case here. When SB 567 applies retroactively to an upper term sentence, the trial court on remand can again impose the upper term if at least one aggravating factor is properly established under section 1170(b)(2). Similarly, a sentence imposed without considering the new lower term presumption under section 1170(b)(6) is not “one that could not lawfully be imposed under any circumstance.” Further, neither error presents 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. Nor would an objection have been futile. People v. Esquivel (2021) 11 Cal.5th 671 held that ameliorative legislation applies retroactively to suspended execution sentences if the defendant “may still timely obtain direct review of an order revoking probation and causing the state prison sentence to take effect,” which is the case here. As such, the issue is forfeited by trial counsel’s failure to raise it below.