Filed 11/27/18 P. v. Brown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter, Judge.

Corey Evan Parker for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Keith P. Sager, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

In 2012, appellant Akil Anthony Brown was serving a prison term when he was charged with possessing marijuana (Pen. Code, § 4573.6, subd. (a)).[1] In February 2013, following a negotiated plea agreement, he received an additional and consecutive prison term of three years for this violation.[2]

More than three years later, when his original prison term was almost completed, appellant petitioned the trial court to recall this three-year sentence. He filed his petition under section 1170, subdivision (d)(1), (the section 1170 petition) and highlighted various accomplishments he had achieved while in custody. The trial court denied the section 1170 petition.

Appellant asserts that the trial court abused its discretion. We need not address that issue because we agree with respondent that the section 1170 petition was not timely filed. As such, the trial court lacked jurisdiction to resentence appellant. We will dismiss this appeal based on the absence of an appealable order.

BACKGROUND

On December 10, 2012, appellant was convicted by plea of possession of marijuana while in prison (§ 4573.6, subd. (a)).[3] On February 26, 2013, appellant was sentenced to an additional and consecutive three-year prison term. That same day, the trial court filed the abstract of judgment for this conviction, which stated that execution of appellant’s sentence was imposed at the sentencing hearing. He was remanded to the sheriff “forthwith” to be delivered to Corcoran state prison.

On April 29, 2016, the court issued an amended abstract of judgment following correction of a clerical mistake. The amended abstract of judgment again noted that execution of appellant’s sentence was imposed at the “initial sentencing hearing.”

On June 15, 2016, appellant filed the section 1170 petition for resentencing.[4] Under section 1170, subdivision (d)(1), a trial court may, within 120 days after a defendant’s prison commitment, recall the sentence and commitment previously ordered and resentence the defendant. Appellant asserted that the section 1170 petition was timely, claiming his sentence for possession of marijuana in prison (§ 4573.6) would begin in February 2017, when his original prison term ended. According to appellant, execution of this sentence had not yet commenced.

On December 19, 2016, the trial court conducted a hearing regarding the section 1170 petition. Through his counsel, appellant argued his “extraordinary accomplishments” during his time in custody warranted a reduction in his sentence.[5] He had authored books and short stories. Proceeds from his sales were going to domestic violence victims. Appellant had matured while in prison and he would pursue writing once released. Appellant’s counsel noted that, although appellant had pleaded guilty to possession of marijuana, his cellmate had “actually admitted to it being his, in his possession.” Defense counsel asked the court to review various attachments to the section 1170 petition. These included letters from various community leaders attesting to appellant’s character, his academic and work accomplishments while in prison, an essay which appellant had drafted, and appellant’s letter to the court. In another letter, appellant’s sister explained some of the physical abuse appellant had endured during his childhood.

Appellant addressed the court directly. He stated he pleaded to possession of five grams of marijuana while in prison because of “safety concerns” but the other “individual on that case” was already out of custody. Appellant explained that, without this conviction, he would also be out of custody. He asked the court for the possibility of going home or a sentence reduction.

The prosecutor argued against resentencing, contending the section 1170 petition did not present any new facts. The prosecutor reminded the trial court that appellant had accepted a plea bargain and the People had “agreed to strike a strike.” Defense counsel countered that the court could consider “any new information.” Defense counsel asserted that appellant had undergone about 17 drug tests, passing all of them.

The trial court denied the section 1170 petition. The court stated that appellant’s accomplishments were impressive. However, the court expressed concern that bringing or possessing drugs in prison was dangerous.

DISCUSSION

Appellant contends the trial court abused its discretion in denying the section 1170 petition. He maintains the court failed to consider many factors, including his character and accomplishments while in custody, his passed drug tests, and the alleged fact his cellmate had admitted possessing the marijuana. He further claims the court failed to consider the change in California law as reflected in Proposition 64.[6]

In contrast, respondent asserts that the trial court lacked jurisdiction to recall appellant’s sentence because the section 1170 petition was not timely. In the alternative, respondent claims the court could not have altered the terms of the negotiated plea bargain. Finally, respondent argues Proposition 64 is inapplicable.

We find respondent’s first argument persuasive, which negates the need to address all disputed issues. Because more than 120 days passed after appellant was sentenced and committed on this three-year term, the court lacked jurisdiction to recall this sentence. As such, we agree with respondent that the court’s order denying the section 1170 petition is not an appealable order. Because the court lacked jurisdiction to recall this sentence, we do not address appellant’s remaining arguments.

I. The Trial Court Lacked Jurisdiction To Recall The Three-Year Sentence.

Under section 1170, when a defendant has been sentenced to be imprisoned, the court may, within 120 days of the date of commitment, “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” (§ 1170, subd. (d)(1).) This statute “is an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun. [Citations.]” (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Under section 1170, subdivision (d)(1), a trial court loses jurisdiction to resentence on its own motion once 120 days have elapsed.[7] (People v. Loper (2015) 60 Cal.4th 1155, 1165; accord Dix v. Superior Court, supra, 53 Cal.3d at p. 464.)

The issue is whether the 120-day limit ran before appellant filed the section 1170 petition on June 15, 2016. Appellant claims it did not. He argues his three-year sentence did not start until February 2017 when his prior prison term ended. He relies on section 1170.1, subdivision (c), for this position. In contrast, respondent contends this 120-day period began to run on February 26, 2013, when he was remanded to correctional officials. We agree with respondent.

Pursuant to section 1213, a trial court must, following pronouncement of judgment for imprisonment in the state prison, provide either a certified copy of the minute order or a certified abstract of judgment to the officer responsible to execute the judgment. (§ 1213, subd. (a).) “Under this statute, ‘the certified abstract of the judgment constitutes the commitment. [Citations.] It is thus the order sending the defendant to prison and “the process and authority for carrying the judgment and sentence into effect.” [Citations.]’ [Citation.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

A judgment for imprisonment is typically deemed executed when a certified copy of the minute order or abstract of judgment is furnished to the officer who will execute the judgment. (§ 1213; People v. Howard (1997) 16 Cal.4th 1081, 1089; see also In re Black (1967) 66 Cal.2d 881, 890 [“Under section 1213 the certified abstract of the judgment constitutes the commitment.”].) The execution of a criminal judgment is the process of carrying the judgment into effect. (People v. Karaman (1992) 4 Cal.4th 335, 344.)

A trial court loses jurisdiction over a defendant when it relinquishes custody of the prisoner. (People v. Karaman, supra, 4 Cal.4th at p. 344; see also Holder v. Superior Court (1970) 1 Cal.3d 779, 783 [“The general rule is that the court loses jurisdiction to reconsider its denial of probation when the court has relinquished control of the defendant and the execution of his sentence has begun.”].) The critical issue is whether the trial court has committed and delivered the defendant to the prison authority. (People v. Karaman, supra, 4 Cal.4th at p. 345.) Remanding a defendant “forthwith” upon imposition of sentence is remanding the defendant to the custody of the prison authority. (People v. Superior Court (Cornelius) (1995) 31 Cal.App.4th 343, 347.)

In this matter, the trial court relinquished custody of appellant to prison officials on February 26, 2013. The judgment for imprisonment was executed when the abstract of judgment was furnished to the appropriate authorities. (§ 1213; see People v. Howard, supra, 16 Cal.4th at p. 1089; People v. Karaman, supra, 4 Cal.4th at p. 345; In re Black, supra, 66 Cal.2d at p. 889 [“Under section 1213 the certified abstract of the judgment constitutes the commitment.”].) As such, appellant was committed on February 26, 2013, and the 120-day limit began to run.

We disagree with appellant’s argument that, under section 1170.1, subdivision (c), his three-year sentence was not “executed” until he had completed his prior prison commitment. Under this statute, when a prisoner is convicted of one or more felonies while confined in the state prison and the court imposes consecutive terms, the new term of imprisonment commences “from the time the person would otherwise have been released from prison.” (§ 1170.1, subd. (c).)

To address appellant’s argument, we turn to statutory construction. Our objective “is to ascertain and effectuate legislative intent.” (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) We look first to the statute’s language, giving effect to its plain meaning. (Ibid.) “Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.]” (Ibid.)

Applying the foregoing rules of statutory interpretation, section 1170.1, subdivision (c), does not alter when the 120-day limit under section 1170, subdivision (d)(1), begins to run. Section 1170.1, subdivision (c), controls when an inmate begins “‘to serve’” consecutive sentences. (People v. Landry (2016) 2 Cal.5th 52, 105.) This “is a technical sentencing statute that addresses the time during which an inmate is actually serving a particular prison term[.]” (Ibid.)

Section 1170.1, subdivision (c), states when a new “term of imprisonment” will commence. It does not address when “commitment” began. In contrast, under section 1170, a court may recall a sentence “within 120 days of the date of commitment” for purposes of resentencing a defendant. (§ 1170, subd. (d)(1).) The words of these statutes are clear so we may not add to or alter them to accomplish a purpose that does not appear. (Burden v. Snowden, supra, 2 Cal.4th at p. 562.)

Because there is no ambiguity in the statutory language, we presume the Legislature meant what it said and the statutes’ plain meaning governs. (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 640.) Furthermore, we presume the Legislature was aware of the language in these statutes, and it would have said something if it intended for section 1170.1, subdivision (c), to modify in any way section 1170, subdivision (d)(1). (See People v. Landry, supra, 2 Cal.5th at p. 105.)

Because appellant was sentenced and committed to the custody of prison officials in February 2013, his section 1170 petition did not meet the statutory 120-day requirement. As such, the trial court lacked jurisdiction to recall this sentence.[8] (§ 1170, subd. (d)(1).) Accordingly, as we explain below, this appeal must be dismissed.

II. This Appeal Must Be Dismissed.

The right to appeal is statutory. (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) Generally, a criminal defendant may only appeal from either (1) a final judgment of conviction or (2) from any order after judgment that affects his or her substantial rights. (§ 1237, subds. (a) & (b); see also People v. Dynes (2018) 20 Cal.App.5th 523, 528.)

In this case, the superior court’s order that denied the section 1170 petition did not involve a final judgment of conviction. This order did not affect appellant’s substantial rights because the court lacked jurisdiction to modify his sentence under section 1170, subdivision (d)(1). Thus, the court’s order denying appellant’s petition for relief is not an appealable order. (See People v. Dynes, supra, 20 Cal.App.5th at p. 528; see also People v. Chlad (1992) 6 Cal.App.4th 1719, 1726 [order denying petition to modify sentence was not appealable because trial court no longer had jurisdiction to recall sentence].) Accordingly, this appeal will be dismissed.

DISPOSITION

The appeal is dismissed.