P. v. Cruz
Filed 8/21/07 P. v. Cruz CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. ALBERT CRUZ, JR., Defendant and Appellant. | C054582 (Super. Ct. Nos. 04F01073, 04F01139, 04F01714) |
Defendant Albert Cruz, Jr., pled no contest to first degree burglary, admitted having a prior serious felony conviction for purposes of the five-year enhancement and the three strikes law, and was sentenced to state prison for nine years. He appealed, and this court affirmed the judgment. (People v. Cruz (Mar. 15, 2006, C050414) [unpub. opn.].) The remittitur issued on May 19, 2006.
Beginning in July 2006, defendant, in propria persona, filed a series of petitions for writ of habeas corpus, motions, letters, requests, and lawsuits in the trial court asking it to reconsider defendants sentence, strike his prior conviction, and sentence him to a drug program on the grounds that he had AIDS and cryptococcal meningitis, was receiving inadequate medical care in prison, and wanted to give back to the community by speaking to children about the pitfalls of drug use.
On November 13, 2006, the trial court denied defendants post-conviction motions, finding that it lacked jurisdiction to modify defendants sentence or to consider his motion to strike.
Defendant filed notices of appeal from the denial of his post-conviction motions.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
On April 20, 2007, defendant filed a supplemental brief asking this court to review the transcript of a hearing on July 20, 2005, because, he claims, the trial court erred by failing to advise him of his Boykin/Tahl[[1]] rights on [his] prior or of parole before he entered his plea.
On June 6, 2007, defendant filed a 2nd Brief, which included the transcript of the hearing on July 20, 2005, to which he referred in his initial supplemental brief. The transcript is of defendants sentencing hearing that occurred sometime after he changed his plea.
As we shall explain, the trial court lacked jurisdiction over the subject matter of defendants post-conviction motions for two separate reasons, and we lack jurisdiction to consider the issue raised in his supplemental brief. Accordingly, we shall dismiss the appeal.
DISCUSSION
The sentence of which defendant complains was affirmed by this court in his first appeal, and the remittitur issued. Thus, the judgment became final, and the trial court correctly concluded it lacked jurisdiction to modify the sentence. (Pen. Code, 1263, 1265; People v. Maggio (1929) 96 Cal.App. 409, 410-411.)
In any event, once judgment is rendered, the sentencing court lacks jurisdiction to vacate or modify the sentence, except pursuant to the provisions of Penal Code section 1170, subdivision (d). (See Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1835.) The statutory exception allows a sentencing court, on its own motion, to recall and resentence, subject to the express limitation that it loses such jurisdiction if it fails to recall a sentence within 120 days of the original commitment. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 464.) Here, sentence was imposed on July 20, 2005. The requests to modify his sentence were not filed until July 2006, well beyond the statutory 120 days; thus, the trial court lacked jurisdiction under Penal Code section 1170, subdivision (d) to act upon a motion to modify defendants sentence by striking his prior conviction and sentencing him to a drug program.
[S]ince . . . the trial court no longer had jurisdiction to recall [defendants] sentence when it issued the order denying his motion, denial of the motion could not have affected [his] substantial rights and the order denying [the] motion to modify sentence is not an appealable order and the appeal must be dismissed. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1726.)
In his supplemental brief, defendant argues the trial court erred by failing to advise him of his Boykin/Tahl rights on [his] prior or of parole before he entered his plea. With limited exceptions not applicable here, [a] notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. (Cal. Rules of Court, rule 8.308.) Judgment was rendered on July 20, 2005. The instant notice of appeal was not filed until December 7, 2006. Accordingly, as it relates to his plea, defendants appeal is untimely. Moreover, his challenge the validity of his plea is not cognizable on appeal because he did not obtain a certificate of probable cause. (Pen. Code, 1237.5, subd. (b); Cal. Rules of Court, rule 8.304(b); In re
Chavez (2003) 30 Cal.4th 643, 646, 651; People v. Mendez (1999) 19 Cal.4th 1084, 1095; People v. Panizzon (1996) 13 Cal.4th 68, 75-76.)
DISPOSITION
The appeal is dismissed.
SCOTLAND, P.J.
We concur:
SIMS , J.
CANTIL-SAKAUYE , J.
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[1]Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122.
