People v. Dowell-Rollins CA3

DISCUSSION

I Section 1170, Subdivision (b)(6) Does Not Prohibit The Imposition Of An Upper-term Sentence Defendant argues the imposition of an upper-term sentence when the lower term presumption applies runs afoul of section 1170, subdivision (b)(6), even if the presumption is defeated and the requirements in subdivision (b)(2) are met. The People contend defendant forfeited his statutory argument by failing to raise it at the sentencing hearing, and, in the alternative, the argument lacks merit. We disagree with the People that defendant forfeited his statutory argument. Issues of statutory interpretation, given they are pure legal questions, compose a narrow

3 category of nonforfeitable error. (See People v. Achane (2023) 92 Cal.App.5th 1037, 1043.) “ ‘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.” ’ ” (Ibid.) As to the merits, we disagree with defendant. “To resolve whether defendant’s interpretation of the . . . statute[] is correct, we are…