Filed 11/21/18 P. v. Scarbrough CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Appointed counsel for defendant Joshua Lee Scarbrough asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Having concluded defendant has appealed from a nonappealable order, we will dismiss the appeal. (People v. Mendez (2012) 209 Cal.App.4th 32, 34; People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.)

BACKGROUND

Defendant pleaded no contest to multiple charges in three different cases, for which he was sentenced on October 16, 2014, to serve a total prison term of eight years. On January 12, 2015, defendant filed a request for resentencing pursuant to Penal Code section 1170.18.[1] On February 23, 2015, the trial court granted defendant’s request for resentencing and noted the need to bring defendant to court for that resentencing. On June 12, 2015, the trial court resentenced defendant, acting in pertinent part to reduce the Health and Safety Code section 11377 count to a misdemeanor (for which defendant would no longer be required to register as a narcotics offender), and sentencing him to serve eight months in the Butte County Jail, to be served consecutively to his existing sentence.

Over two years later, on December 21, 2017, defendant filed a motion to modify his sentence, which was denied by the trial court without prejudice to refiling, because the court doubted its authority to modify the sentence. Defendant timely appealed.

DISCUSSION

An order made after judgment affecting a defendant’s substantial rights is appealable. (§ 1237, subd. (b).) However, once judgment is rendered, except for limited statutory exceptions (§§ 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, 1834-1835.) 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, 464.) Indeed, “the court loses ‘own-motion’ jurisdiction if it fails to recall a sentence within 120 days of the original commitment. [Citations.]” (Ibid.)

Here, defendant was committed to state prison and judgment was rendered when the trial court imposed sentence on October 16, 2014. Defendant was then resentenced by the trial court pursuant to his section 1170.18 request on June 12, 2015. Assuming without deciding this resentencing restarted the 120-day clock under section 1170, subdivision (d), the trial court lacked jurisdiction to grant defendant’s modification request coming more than two years after his resentencing. (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1725.) Because the trial court lacked jurisdiction to modify defendant’s sentence, denial of his motion to modify his sentence could not have affected his substantial rights. (Id. at p. 1726.) Accordingly, the “order denying [the] motion to modify sentence is not an appealable order,” and the appeal must be dismissed. (Ibid.)

DISPOSITION

The appeal is dismissed.

/s/

HOCH, J.

We concur:

/s/

MURRAY, Acting P. J.

/s/

DUARTE, J.