Filed 8/3/17 P. v. Smith CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN RAY SMITH,

Defendant and Appellant.

F074086

(Super. Ct. No. VCF100828C)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

 
Appellant Kevin Ray Smith appeals from the trial court’s denial of his motion for modification of sentence. Following review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we dismiss the appeal.
FACTUAL AND PROCEDURAL HISTORY
On March 14, 2003, Smith pled no contest to attempted second degree murder (Pen. Code, §§ 664/187) and admitted that he discharged a firearm during the commission of that offense (§ 12022.53, subd. (c)).
On May 23, 2003, the court sentenced Smith to a stipulated, aggregate prison term of 30 years, the lower term of five years, doubled, on his attempted murder conviction, and a 20-year arming enhancement.
On April 29, 2016, Smith filed a motion to modify his sentence.
On May 9, 2016, the court denied the motion stating that it lacked jurisdiction to grant the motion.
On July 15, 2016, Smith filed an appeal.
“ ‘[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun. [Citation.]’ [Citations.] There are few exceptions to the rule.” (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204 (Turrin).) For example, section 1170, subdivision (d) allows the trial court to recall a defendant’s sentence on its own motion within 120 days after committing a defendant to prison, but does not authorize the defendant to file motion to recall sentence. (Turrin, supra, at p. 1204.) A trial court may correct a clerical error and an unauthorized sentence may be corrected at any time. (Id. at p. 1205.) However, none of these exceptions applies here.
Section 1237, subdivision (b), provides that a defendant may appeal “ ‘[f]rom any order made after judgment, affecting the substantial rights of the party.’ ” Since the court lacked jurisdiction to resentence Smith, its order denying Smith’s motion requesting the same did not affect his substantial rights and is not an appealable postjudgment order. The appeal should be dismissed. (Cf. Turrin, supra, 176 Cal.App.4th. at p. 1208.)
DISPOSITION
The appeal is dismissed.