92 Cal.App.5th 1037
Cal. Ct. App.2023Background
- In Feb 2020 Achane pleaded guilty to willful corporal injury (§ 273.5) and was sentenced to the upper term of 4 years, execution suspended, and placed on probation.
- He later pleaded guilty in two additional cases and was placed on probation in each; probation was repeatedly violated.
- Probation was revoked after new firearm- and related-offense allegations; at a July 28, 2022 hearing the court activated the previously imposed 4-year upper term and imposed consecutive middle terms in two other cases, totaling 5 years 4 months.
- By the time the suspended sentence was activated, § 1170 had been amended (effective Jan 1, 2022) to (1) make the middle term presumptive and limit imposition of an upper term to specified procedures, and (2) create a presumption favoring a lower term where certain trauma-related factors contributed to the offense.
- Achane appealed, arguing the amended § 1170 applied retroactively (his case was not final) and therefore he was entitled to resentencing; the court affirmed, concluding he forfeited these claims by not raising them below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Achane was entitled to retroactive application of the § 1170 amendments and resentencing | People: Achane forfeited the issue by failing to request retroactive application at the revocation/sentencing hearing | Achane: Case was not final (Esquivel); ameliorative law should apply retroactively and entitle him to resentencing | Forfeited — defendant failed to raise the argument in trial court; claim not preserved and appellate relief denied |
| Whether the "unauthorized sentence" exception avoids forfeiture | People: The exception is narrow and inapplicable where remand for resentencing (not simple correction) may be required | Achane: The imposed upper term was unauthorized under amended § 1170 and thus review is not forfeitable | Exception inapplicable — the error requires factual determination/remand and is not a pure legal defect independently correctable |
| Whether objection would have been futile (so forfeiture excused) because the court ordering a previously suspended sentence into effect lacked power to alter it | People: Esquivel and retroactivity principles meant Achane could and should have asked the trial court to apply the amendments; futility not shown | Achane: Howard/Bolian rule makes it pointless to object because the court must order the exact prior sentence into effect | Futility not shown — Esquivel recognizes defendants may obtain retroactive relief and trial courts may apply ameliorative law; Achane should have raised the issue below |
| Whether the § 1170(b)(6) presumption favoring lower term (trauma factor) required consideration | People: Failure to request consideration below forfeited the claim | Achane: Record shows trauma as contributing factor, so presumption should apply | Forfeited — factual determination required; defendant failed to request consideration at sentencing, so appellate review denied |
Key Cases Cited
- People v. Esquivel, 11 Cal.5th 671 (2021) (ameliorative sentencing amendments apply retroactively where case not final and defendant may timely seek review of revocation)
- In re Estrada, 63 Cal.2d 740 (1965) (general rule favoring retroactive application of ameliorative criminal statutes)
- In re G.C., 8 Cal.5th 1119 (2020) (narrow "unauthorized sentence" exception to forfeiture applies only to pure legal errors correctable without remand)
- People v. Scott, 9 Cal.4th 331 (1994) (definition and scope of unauthorized sentence error)
- People v. Howard, 16 Cal.4th 1081 (1997) (limitations on trial court authority when reinstating previously imposed suspended sentences)
- People v. Buycks, 5 Cal.5th 857 (2018) (procedural avenues for relief when ameliorative legislation applies)
- People v. Flores, 75 Cal.App.5th 495 (2022) (application of amended § 1170 limiting imposition of upper term)
- People v. Lopez, 78 Cal.App.5th 459 (2022) (remand and procedures when amended § 1170 requires findings or defendant stipulation)