People v. Wilson CA4/2

Opinion

Filed 3/1/24 P. v. Wilson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E080689

v. (Super. Ct. No. FSB21001182)

ZEBEDEE WILSON, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

Deanna L. Lopas, by appointment of the Court of Appeal, for Defendant and

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, and

Melissa Mandel, Supervising Deputy Attorneys General for Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant Zebedee Wilson, Jr., appeals from the trial court’s

February 9, 2023 ruling on a petition revoking probation, which terminated his probation

and imposed the upper term of three years in state prison after defendant violated his

probation for a second time. The execution of the three-year sentence had previously

been suspended pursuant to a plea agreement.

However, after the plea agreement, effective January 1, 2022, Senate Bill No. 567

(Stats. 2021, ch. 731, § 1.3) (2021-2022 Reg. Sess.) became effective and altered the

circumstances under which the upper term could be imposed. Defendant now seeks

resentencing based on this change in law.

The People do not dispute the bill’s retroactivity. They instead argue that

defendant is not entitled to resentencing because he failed to raise the issue at the

February 9, 2023 hearing, despite the new law being in effect for over a year by that time;

and urge this court to adopt the position that Senate Bill No. 567 would, nonetheless, be

inapplicable to sentences imposed under stipulated plea agreements. We agree that

defendant has forfeited his claim and therefore affirm the trial court’s execution of the

sentence.

This court acknowledges the current split in authority on the issue of whether

Senate Bill No. 567 affects stipulated pleas, as well as the fact that our Supreme Court

has taken the question under review. (People v. Mitchell (2022) 83 Cal.App.5th 1051,

review granted Dec. 14, 2022, S277314 (Mitchell).) Because we hold that defendant’s

2 claim has been forfeited, we decline to express a position on this dispute except to note

that, regardless of the Supreme Court’s decision, defendant’s appeal would be

unsuccessful.

FACTUAL AND PROCEDURAL HISTORY

In 2021 defendant pled “no contest” to one count of violating Vehicle Code

section 2800.2, subdivision (a), i.e., evading a peace officer while driving with a willful

disregard for others’ safety. According to his plea agreement, defendant consented to the

imposition of the “upper term of three years.” At the settlement conference, the trial

court suspended the execution of the sentence and instead ordered defendant to serve two

years of probation.

About one year later, the trial court found that defendant had violated the terms of

his probation by failing to report as required. The court nevertheless reinstated probation

but, not even a year later, found that defendant had violated probation again. After this

second violation, the court revoked probation altogether and ordered defendant to serve

the original sentence. Defendant has timely appealed this order.

DISCUSSION

A. SENATE BILL No. 567

At the time that defendant originally pled no contest and agreed to the upper term

sentence of three years, Penal Code1 section 1170, former subdivision (b) “vested the

court with ‘sound discretion’ to simply weigh circumstances in aggravation or mitigation,

1 Subsequent undesignated statutory references are to the Penal Code.

3 and any other relevant factors, and then impose any of the three prescribed terms (low,

middle, or high)” of a sentencing triad. (People v. Salazar (2023) 15 Cal.5th 416, 426.)

As it now reads, “the court shall, in its sound discretion, order imposition of a

sentence not to exceed the middle term, except as otherwise provided in paragraph (2).”

(§ 1170, subd. (b)(1).) Paragraph (2) then provides that the court: “[M]ay impose a

sentence exceeding the middle term only when there are circumstances in aggravation of

the crime that justify the imposition of a term of imprisonment exceeding the middle

term, and the facts underlying those circumstances have been stipulated to by the

defendant or have been found true beyond a reasonable doubt at trial by the jury or by the

judge in a court trial.”

In other words, “[i]f the trial court concludes that there are no circumstances in

aggravation of the crime that justify the imposition of a term of imprisonment exceeding

the middle term, it cannot impose the upper term.” (People v. Todd (2023) 88

Cal.App.5th 373, 381 review granted Apr. 26, 2023, S279154 (Todd).)

“[W]here the court imposes sentence but suspends its execution, that sentence

constitutes only a provisional or conditional judgment, the finality of which depends on

the outcome of the probationary period.” (People v. Lopez (2020) 57 Cal.App.5th 409,

414 (Lopez).) As such, “a suspended execution sentence is not final” (People v. Esquivel

(2021) 11 Cal.5th 671, 680); and “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. Achane (2023) 92 Cal.App.5th 1037, 1042 (Achane)).

4 As we have alluded, the courts disagree as to whether Senate Bill No. 567 applies

to sentences which were imposed pursuant to a stipulated plea agreement. The published

opinions are evenly divided on the issue: the Fifth District and Division Five of the First

District have held in People v. Sallee (2023) 88 Cal.App.5th 330, review granted

April 26, 2023, S278690, and Mitchell, supra, 83 Cal.App.5th 1051, respectively, that

Senate Bill No. 567 does not apply to stipulated pleas because the trial courts exercise no

discretion when entering a sentence based on a plea deal. The Sixth District and Division

One of the First District have held in Todd, supra, 88 Cal.App.5th 373 and People v. Fox

(2023) 90 Cal.App.5th 826, respectively, that, pursuant to People v. Stamps (2020) 9

Cal.5th 685, the new law does apply to stipulated pleas because the trial court has

“broad” discretion to approve of the plea agreement. (Id. at p. 708) The split in authority

hangs on the question of whether, when imposing a sentence pursuant to a stipulated plea,

the courts are exercising the type of “discretion” contemplated by section 1170.

Defendant, who is serving the upper term, argues he is entitled to resentencing

under the new law. The People do not dispute defendant’s contention that his sentence

was not final when the amendment went into effect. The issue instead is that when the

trial court ordered defendant to serve his term of imprisonment, Senate Bill No. 567 was

already in effect—yet defendant failed to raise it.

B. THE DOCTRINE OF FORFEITURE

“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous

ruling of the trial court in that court has forfeited his or her right to raise the claim on

5 appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena).) This rule has been

applied to a defendant’s failure to object to an imposition of the upper term that did not

comply with Senate Bill No. 567’s new requirements. (People v. Anderson (2023) 88

Cal.App.5th 233, 241-242, review granted Apr. 19, 2023, S278786.)

But, as defendant notes, an exception to forfeiture is made “for a so-called

unauthorized sentence or a sentence entered in excess of jurisdiction.” (Sheena, supra,

40 Cal.4th at pp. 886-887.)

Here, defendant concedes that he did not raise the issue of the amendment to

section 1170 at the hearing on the order which he now appeals, despite Senate Bill

No. 567 by then being in effect for over a year. Nevertheless, he argues that his omission

qualifies for an exception to forfeiture because his sentence was “not authorized.”

UNDER DEFENDANT’S OWN THEORY OF RELIEF, THE UPPER TERM WAS NOT

AN “UNAUTHORIZED SENTENCE”

The Supreme Court has defined unauthorized sentences as those that “could not

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

(1994) 9 Cal.4th 331, 354 (Scott).) “These cases generally involve pure questions of law

that can be resolved without reference to the particular sentencing record developed in

the trial court.” (People v. Welch (1993) 5 Cal.4th 228, 235.) Thus, while the Supreme

Court acknowledged in Scott, that “an unauthorized sentence commonly occurs where the

court violates mandatory provisions governing the length of confinement,” it held that

“sentences which, though otherwise permitted by law, were imposed in a procedurally or

6 factually flawed manner” do not fall under this definition and are therefore waivable.

(Id. at p. 354)

The First District has already ruled on substantially similar facts. In Achane,

supra, 92 Cal.App.5th 1037, the defendant “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.” (Id. at p. 1042.)

This defendant, too, sought resentencing under Senate Bill No. 567. But the

First District noted that the amendment “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 . . . . Achane is not entitled to resentencing because he forfeited his

objection to the sentence imposed in 2020.” (Achane at p. 1043.)

Here, Senate Bill No. 567 had been in effect for over 13 months by the time

defendant was ordered to serve his prison sentence. Therefore, like the defendant in

Achane, defendant’s failure to request the application of the new sentencing laws was a

forfeiture of his appellate claim. Further, we hold that defendant’s sentence does not

qualify for the unauthorized sentence exception.

7 We agree with Achane’s holding and add2 that, if we accept defendant’s own

argument that Senate Bill No. 567 applies to his stipulated plea, then the trial court’s

imposition of the upper term could never be an unauthorized sentence sufficient to relieve

defendant from forfeiture. This is because the implicit basis of defendant’s appeal is the

trial court’s alleged failure to consider the existence of aggravating factors before

executing the upper term sentence. It follows that, under defendant’s theory, even if the

case were remanded for resentencing, as long as the trial court employed its discretion

and determined that “at least one aggravating factor is properly established by admission,

finding beyond a reasonable doubt or certified record of conviction,” it could still impose

the upper term. (Achane, supra, 92 Cal.App.5th at p. 1044.) Under this logic, the

imposition of the upper term is not the type of sentence that “could not lawfully be

imposed under any circumstance in the particular case.” (Scott, supra, 9 Cal.4th at

p. 354.) If the trial court properly exercises it discretion, the upper term could certainly

be imposed. It is hence, by definition, not an unauthorized sentence.

It follows, too, under defendant’s own theory, that this claim does not qualify for

the unauthorized sentence exception because it cannot be resolved without referencing

the factual findings in the sentencing record. Recall that the dispute over whether Senate

Bill No. 567 applies to stipulated pleas currently hinges on whether a court exercises

2 Achane addressed a similar contradiction in that it rejected defendant’s argument that he was both entitled to relief from forfeiture because an objection would have been futile due to the trial court’s lack of authority to “order a lesser sentence” (Achane, supra, 92 Cal.App.5th at p. 1043), yet simultaneously entitled to a retroactive application of Senate Bill No. 567 because his sentence was not final when Senate Bill No. 567 became effective.

8 “discretion” when imposing the agreed upon sentence. In countering the People’s

argument that Senate Bill No. 567 should not apply to stipulated pleas, defendant

necessarily contends that a court does exercise its discretion when imposing a sentence

pursuant to a plea agreement; if the trial court had no such discretion, then it could not

consider any aggravating factors. But if, as defendant suggests, the trial court’s decision

to impose the upper term was an exercise of its sentencing discretion, then the decision

needed to have been based on an evaluation of the facts; a sentence is not unauthorized if

the reviewing court would be required to “substitute its reasons for those omitted or

misapplied by the trial court,” or “reweigh valid factors bearing on” the trial court’s

sentencing decision. (Scott, supra, 9 Cal.4th at p. 355.) Thus, if the imposition of the

upper term is an exercise of discretion, then the unauthorized sentence exception cannot

apply.

Defendant, of course, cannot take the People’s approach and argue that the trial

court had no discretion to impose a sentence other than that to which the parties already

agreed. This would require the conclusion that defendant is ineligible for relief under

Senate Bill No. 567.

He therefore relies on the more subtle holding of Lopez, supra, 57 Cal.App.5th

409. In Lopez, the Sixth District ruled on the merits of the defendant’s claim that he was

entitled to resentencing, pursuant to a statutory amendment that changed his underlying

crime from a felony to a misdemeanor. The defendant in Lopez could have raised this

issue by appealing an earlier order that had terminated his probation. (Id. at p. 416.)

9 Despite this omission, the Sixth District found it “appropriate to reach the merits of the

issue here regardless of any previous failure to raise it. As defendant was punished under

a statute the Legislature has since deemed unfair, that outcome should not stand if it can

properly be avoided.” (Ibid.)

Defendant cites Lopez for the proposition that the court “must” avoid upholding

punishments that the Legislature has “since deemed unfair,” regardless of his failure to

raise it prior to appealing, but this overstates Lopez’s conclusion. The court in Lopez at

no point held that the defendant did not forfeit his claim, nor did it decide that relief from

forfeiture is mandatory when a sentence no longer adheres to a statute. It merely noted

that “application of the forfeiture rule is not automatic” because the reviewing court has

discretion to decide that “competing considerations” weigh in favor of reaching the

merits of an otherwise untimely claim. (Lopez, supra, 57 Cal.App.5th at p. 416.) In

other words, even when a claim has technically been forfeited, the court may elect to rule

on it anyway. We decline to do so here.

In summary, by the time the trial court reimposed the upper term, Senate Bill

No. 567 had been in effect for 13 months. This is six months longer than the

seven months that the Achane court found to be unacceptable. Furthermore, the hearing

on the revocation of probation was pending and repeatedly continued for over two

months prior to the February 9, 2023 hearing and order; and as of January 4, 2023,

defendant possessed the probation officer’s supplemental report in which the probation

10 officer recommended defendant serve the suspended prison sentence. Therefore,

defendant had a fair opportunity to request the application of Senate Bill No. 567.

We acknowledge that, here, whether the trial court’s imposition of the upper term

qualifies as an unauthorized sentence eligible for the exception to forfeiture depends on

whether a sentence imposed pursuant to a stipulated plea permits the trial court to

exercise any discretion; and this question is precisely the one that the Supreme Court is

poised to resolve, due to the split in authority.

As it so happens, we need not articulate our position on the question because the

only possibility is that, in one scenario, defendant forfeited his claim; and in the other

scenario, he is not entitled to relief under the new law. This appeal therefore must fail no

matter the outcome.

DISPOSITION

The order of the trial court is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

We concur: CODRINGTON J.

FIELDS J.