Filed 12/11/18 P. v. Nelson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

A154505

v.

(Sonoma County Superior

MICHAEL EDWARD NELSON, JR., Court No. SCR 700400)

Defendant and Appellant.

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Michael Edward Nelson, Jr., pleaded guilty to one count of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)),[1] to one count of possession of ammunition by a felon (§ 30305, subd. (a)(1)), and he also admitted to one prior strike conviction (§ 1170.12, subds. (b), (c)), and to one prior prison term (§ 667.5, subd. (b)). In accordance with the terms of his plea bargain, the trial court sentenced Nelson to six years and four months in prison. Nelson petitioned for recall of his sentence and resentencing. The court denied the petition.

Nelson appeals. His appointed counsel asked this court to review the record to determine whether there are any arguable appellate issues. (People v. Wende (1979) 25 Cal.3d 436.) Our review of the record discloses no arguable issues. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 22, 2017, Nelson attempted to submit a false urine sample to his parole officer during a chemical test. Nelson’s parole officer searched his cellular telephone and observed a video of Nelson holding an assault rifle and a handgun. A search of Nelson’s home revealed he possessed an AR-15 style assault rifle and a large capacity magazine, two additional loaded high capacity rifle magazines, a fully loaded 9-mm Glock 43 handgun, and three additional loaded pistol magazines.

On March 24, 2017, Nelson was charged with possession of firearms by a felon (§ 29800, subd. (a)(1); count 1); possession of a firearm with a prior conviction of violent offenses (§ 29900, subd. (a)(1); count 2); possession of an assault weapon (§ 30605, subd. (a); count 3); possession of ammunition by a felon (§ 30305, subd. (a)(1); count 4); manufacturing, importing, keeping for sale, giving or receiving a large-capacity magazine (§ 32310, subd. (a); count 5); and possession of a firearm with identification numbers removed (§ 23920; count 6). It was further alleged Nelson had numerous prior strike convictions (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)), and served a number of prior prison terms (§ 667.5, subd. (b)).

On March 28, 2017, Nelson pleaded guilty to counts 1 and 4, and he admitted one prior strike conviction and one prior prison term, in return for dismissal of the remaining charges and sentencing enhancement allegations, and an agreed prison term of six years and four months. On April 26, 2017, Nelson was sentenced in accordance with the terms of his plea bargain.

Over seven months later, on December 13, 2017, Nelson, acting in propria persona, petitioned for recall of his sentence and resentencing. Nelson argued Propositions 47 and 57 applied to his convictions and sentencing enhancements. Nelson described himself as a drug addict eligible for drug rehabilitation. Nelson pointed out he owns and operates a moving and hauling business, and he is the primary caregiver for his elderly father.

On January 30, 2018, the court denied Nelson’s petition concluding it had no jurisdiction to recall his sentence. On May 10, 2018, after a hearing on Nelson’s petition, the court determined he was not eligible for relief under section 1170.18.

DISCUSSION

Nelson’s appointed counsel filed a Wende brief and informed Nelson he had a right to file a supplemental brief on his own behalf. Nelson did not do so.

Nelson’s appeal raises no arguable issues. “Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.” (People v. Karaman (1992) 4 Cal.4th 335, 344.) A trial court may recall a state prison sentence “within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings” (§ 1170, subd. (d)), but it “does not have open-ended jurisdiction to modify a sentence; the court’s jurisdiction expires after 120 days.” (People v. Willie (2005) 133 Cal.App.4th 43, 49.) Here, Nelson was sentenced on April 26, 2017. The court correctly determined it had no jurisdiction to resentence Nelson because the court received Nelson’s petition on December 13, 2017, over seven months after he was sentenced.

The court also correctly determined, at the May 10, 2018 hearing, that Nelson was not eligible for resentencing under Proposition 47, which “reclassified as misdemeanors certain drug- and theft-related offenses that previously were felonies or wobblers.” (People v. Valencia (2017) 3 Cal.5th 347, 355.) Proposition 47 applies to defendants convicted of violations of Health and Safety Code sections 11350, 11357, or 11377 or Penal Code sections 459.5, 473, 476a, 490.2, 496 or 666. (§ 1170.18, subd. (a).) Nelson’s convictions—for being a felon in possession of a firearm and ammunition—are not within the scope of Proposition 47.

Proposition 57 “prohibits prosecutors from charging juveniles with crimes directly in adult court.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) Nelson was 37 years old when charged with the offenses at issue. Thus, Proposition 57 does not apply.

Furthermore, Nelson’s sentence was imposed pursuant to the terms of a plea agreement, and multiple other charges and enhancements were dismissed. Even if the trial court had jurisdiction to consider modification of Nelson’s sentence, it could not impose a sentence inconsistent with the agreed upon terms of the plea bargain. (People v. Segura (2008) 44 Cal.4th 921, 931 [once a negotiated plea’s terms have been accepted, the court lacks jurisdiction to alter those terms to become more favorable to a defendant unless the parties agree].)

DISPOSITION

The judgment is affirmed.

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Jones, P.J.

We concur:

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Simons, J.

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Needham, J.

A154505