P. v. Newman
Filed 4/12/07 P. v. Newman 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Lassen)
----
THE PEOPLE, Plaintiff and Respondent, v. GENE LOUIS NEWMAN, Defendant and Appellant. | C052977 (Super. Ct. No. CR020105) |
After serving a portion of a one-year sentence imposed pursuant to a plea of guilty or no contest[1]to exhibiting harmful matter to a minor in violation of Penal Code section 313.1, subdivision (a), a misdemeanor,[2]defendant Gene Louis Newman filed three postconviction motions (two to modify his sentence and one to retract his plea), all of which were denied by the trial court. Defendant appeals the denial of those motions as error, and further contends the trial court failed to continue prosecution of the case in a timely manner following this courts issuance of a remittitur. Because the trial court lacked jurisdiction over the subject matter of defendants motions, we shall dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offense are not relevant to this appeal.
Defendant was initially charged with one felony count of distribution or exhibition of lewd material to a minor in violation of section 288.2, subdivision (a) and three misdemeanor counts of annoying or molesting a child under the age of 18 in violation of section 647.6, subdivision (a). The information was amended twice, resulting in a second amended information charging defendant with one misdemeanor count of exhibiting harmful matter to a minor in violation of section 313.1, subdivision (a).
Defendant entered a plea of guilty/no contest to the charged offense. On January 13, 2005, the trial court sentenced him to one year in jail without probation and imposed various fees and fines.
Following denial of a petition for writ of habeas corpus on June 2, 2005, defendant filed an appeal with this court (case No. C048883) pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirmed the judgment of the trial court. Defendants petition for review to the California Supreme Court was denied on December 14, 2005, and a remittitur was issued on December 16, 2005.
After serving a portion of his one-year sentence, defendant filed three postconviction motions: a motion to reconsider the sentence filed on March 23, 2006; a motion to retract the plea filed on May 10, 2006; and a motion for sentence conversion filed on June 1, 2006. The trial court denied each of those motions, either based on lack of jurisdiction or on the merits, or both.
DISCUSSION
Defendants appeal first challenges the trial courts denial of his three postconviction motions.
The People argue that the trial court did not have jurisdiction over the subject matter of any of defendants motions, and defendants appeal must therefore be dismissed. We agree.
Once judgment is rendered, 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, 1834-1835 (Portillo).) The statutory exception allows a sentencing court on its own motion to recall and resentence, subject to the express limitation that the court loses such jurisdiction if it fails to recall a sentence within 120 days of the original commitment. (Dix v. Superior Court (1991) 53 Cal.3d 442, 464.)
In this case, sentence was imposed on January 13, 2005. Defendant was thereafter remanded to custody and began serving his one-year jail sentence, a portion of which he served prior to filing the postconviction motions at issue. Consequently, the trial court lacked jurisdiction under section 1170, subdivision (d) to act upon defendants motions, filed well after the passage of 120 days, to modify the sentence and to retract the plea.
Moreover, after a judgment has been affirmed on appeal, the judgment becomes final and the trial court loses jurisdiction to modify it. ( 1263, 1265; People v. Maggio (1929) 96 Cal.App. 409, 410-411.) Here, defendant appealed from the judgment. This court affirmed the judgment of the trial court and, after this states highest court denied defendants petition for review, issued a remittitur on December 16, 2005. Hence, the trial court did not have jurisdiction to rule upon defendants postconviction motions to modify the sentence, or his postconviction motion to retract his plea. ( 1018 [application to withdraw plea must be made at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended]; see People v. DeVore (1990) 218 Cal.App.3d 1316, 1318-1319.) [S]ince we have concluded the trial court no longer had jurisdiction to recall [defendants] sentence when it issued the [purported] order denying his motion, denial of the motion could not have affected [his] substantial rights. [Citation.] [] [Hence, t]he [purported] order denying [the] motion to modify sentence is not an appealable order. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1726; accord, Portillo, supra, 10 Cal.App.4th at p. 1834, fn. 4; People v. Roe (1983) 148 Cal.App.3d 112, 118; People v. Gainer (1982) 133 Cal.App.3d 636, 641.)
Because defendant cites no authority for his second contention on appeal -- that the trial court erred because it did not continue prosecution of the case after the remittitur was issued -- his contention requires no further discussion. (People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority].)
DISPOSITION
The appeal is dismissed.
RAYE , J.
We concur:
BLEASE , Acting P.J.
CANTIL-SAKAUYE , J.
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[1] Defendant has not provided this court with a sufficient record to determine whether the plea entered was guilty or no contest. Clarification of that issue, however, is not necessary for resolution of this appeal.
[2] All further statutory references are to the Penal Code.
