California Court of Appeal Mar 1, 2024 No. E080689Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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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
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
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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.
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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.
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“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.)
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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
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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.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant forfeited his claim for resentencing under Senate Bill No. 567 by failing to raise the issue at his probation revocation hearing, and that the sentence imposed did not qualify as an unauthorized sentence exempt from the forfeiture rule.
Issues
Whether a defendant forfeits a claim for resentencing under Senate Bill No. 567 by failing to raise the issue at the trial court level.
Whether the imposition of an upper term sentence pursuant to a stipulated plea agreement constitutes an 'unauthorized sentence' that is exempt from the forfeiture doctrine.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We agree that defendant has forfeited his claim and therefore affirm the trial court’s execution of the sentence.”