Opinion
C090462
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH MELGER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62158346B)
Appointed counsel for defendant Thomas Joseph Melger has asked this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 for arguable issues in his appeal from the denial of his motion to vacate his sentence pursuant to Penal Code section 1201.5. Because we find defendant has appealed from a nonappealable order, we dismiss the appeal.
Undesignated statutory references are to the Penal Code.
BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)
The People's March 6, 2018 complaint charged defendant with second degree commercial burglary (§ 459; count one), grand theft (§ 487, subd. (a); count two), and vandalism (§ 594, subd. (a); count three). It was alleged as to all counts that defendant had been previously convicted of a serious or violent felony (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), that he was not eligible to serve time in a county correctional facility (§ 1170, subds. (h)(3), (f)), and that he had four prison priors (§ 667.5, subd. (b)).
On March 9, 2018, defendant pleaded no contest to count one and admitted the strike allegation. In exchange, defendant received the midterm term of two years in prison, doubled to four years for the prior strike.
On August 7, 2019, defendant filed a motion to vacate his sentence and remand for resentencing pursuant to section 1201.5, arguing the trial court should strike his strike. The trial court denied his motion on August 8, 2019, finding the court did not have jurisdiction to consider the motion. Defendant timely appealed.
DISCUSSION
As this court explained in People v. Chamizo (2019) 32 Cal.App.5th 696, 699-700: " 'A defendant may appeal from a final judgment of conviction or from any order after judgment which affects his or her substantial rights. ([Pen. Code,] § 1237.) "[J]udgment is synonymous with the imposition of sentence [citation] . . . ." (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2.)' (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725.)"
"Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of sentence has commenced." (People v. Karaman (1992) 4 Cal.4th 335, 344.) Thus, once judgment is rendered, except for limited statutory exceptions which do not apply here (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence except pursuant to the provisions of section 1170, subdivision (d). (See Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1836.)
"Penal Code section 1170, subdivision (d) allows a sentencing court on its own motion to recall and resentence, subject to the express limitation that the court must act to recall the sentence within 120 days after committing the defendant to prison. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 456.) 'Cases under . . . [Penal Code] section 1170(d) . . . have held that the court loses "own-motion" jurisdiction if it fails to recall a sentence within 120 days of the original commitment. [Citations.]' " (People v. Chamizo, supra, 32 Cal.App.5th at p. 700.)
Here, defendant was sentenced on March 9, 2018, but did not move to modify his sentence until August 7, 2019. Thus, the 120-day limitation under section 1170, subdivision (d) had long since passed at the time he filed his motion. Therefore, the trial court was without jurisdiction to consider that motion. (See People v. Chlad, supra, 6 Cal.App.4th at pp. 1724-1725.) We note that, because the court was without jurisdiction to consider the motion, its denial did not impact defendant's substantial rights. (Id. at p. 1726 [because the court was without jurisdiction to consider the defendant's untimely motion to modify his sentence, denial of the motion could not have adversely impacted the defendant's substantial rights]; see also People v. Dynes (2018) 20 Cal.App.5th 523, 528 [denial of motion to modify sentence brought outside of regulations to be adopted pursuant to Proposition 57 was not appealable].)
While we recognize that the Legislature may expressly avail defendants whose judgments are final of the benefits of newly enacted laws (see, e.g., Teal v. Superior Court (2014) 60 Cal.4th 595, 600 ["Section 1170.126 creates a substantial right to be resentenced and provides a remedy by way of a statutory postjudgment motion"]), here, defendant's motion did not identify any exception to the trial court's loss of jurisdiction to consider his postjudgment motion for resentencing. Thus, the trial court's order was not appealable. (People v. Chlad, supra, 6 Cal.App.4th at p. 1726; People v. Dynes, supra, 20 Cal.App.5th at p. 528.)
Defendant's notice of appeal argues he was seeking resentencing pursuant to Proposition 47 and section 1170.18. We cannot fault the trial court for failing to consider an argument not presented by defendant in his motion, which requested striking a strike, not modification of his burglary conviction under Proposition 47. --------
DISPOSITION
The appeal is dismissed.
/s/_________
RAYE, P. J. We concur: /s/_________
BLEASE, J. /s/_________
MAURO, J.