Filed 9/12/17 P. v. Powers CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Harold Joshua Powers appeals from the trial court’s order dismissing his “motion for modification of sentence under California Penal Code section 1473(E)(1); (fraud).” Appointed counsel asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)

On December 4, 2011, defendant shot and killed a man while showing off a gun he recently acquired.

In 2012 defendant pleaded no contest to involuntary manslaughter (Pen. Code, § 192, subd. (b))[1], felon in possession of a firearm (former § 12021, subd. (a)(1)), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and admitted an enhancement for personally using a firearm (§ 12022.5, subd. (a)). He was sentenced to a stipulated term of 14 years in state prison.

On December 9, 2016, defendant filed his motion to modify, asserting that his upper term sentence for involuntary manslaughter was improper under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. The trial court found it had no jurisdiction to modify his sentence and it would not construe the motion to be a habeas petition because defendant demonstrated no error entitling him to relief. It dismissed the motion.

Defendant has filed a supplemental brief essentially reiterating the claim he made to the trial court.

“ ‘[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.) No recognized exception applies here. The trial court did not recall the sentence within 120 days of commitment of defendant to prison and, while defendant appears to be challenging the legality of his convictions, he does not argue that his sentence was not authorized or was the product of clerical error. (See id. at pp. 1205-1207.) Hence, the trial court was without jurisdiction to modify defendant’s sentence. (Id. at p. 1208.)

“ ‘ “It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.” [Citations.]’ [Citation.]” (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) “Stated simply, a criminal appeal by the defendant may be taken only from ‘a final judgment of conviction’ (§§ 1237, subd. (a), 1466, subd. (2)(A)) or from ‘any order made after judgment, affecting the substantial rights’ of the party (§§ 1237, subd. (b), 1466, subd. (2)(B)).” (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) Here, appeal is not taken from the judgment of conviction. And because the trial court lacked jurisdiction to modify the sentence, its order dismissing defendant’s motion requesting the same did not affect his substantial rights and is not an appealable postjudgment order. (People v. Turrin, supra, 176 Cal.App.4th at p. 1208.) Finally, defendant cannot appeal from the denial of a petition for writ of habeas corpus. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7; In re Crow (1971) 4 Cal.3d 613, 621, fn. 8.) Accordingly, the appeal must be dismissed.

DISPOSITION

The appeal is dismissed.

RAYE , P. J.

We concur:

HULL , J.

MAURO , J.