Opinion
C082211
05-01-2017
THE PEOPLE, Plaintiff and Respondent, v. BEAUMONT ADAM BURGESS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. P14CRF0147, P15CRF0161)
While defendant Beaumont Adam Burgess was serving the in-custody portion of a split sentence, he sent the trial court a motion for a sentence modification. The trial court ordered the motion filed and summarily denied it. On appeal, defendant contends the trial court abused its discretion in summarily denying his motion. We, however, will dismiss the appeal because defendant has not appealed from an appealable order.
FACTS AND PROCEEDINGS
On July 20, 2015, defendant pled no contest to receiving stolen property and admitted two prior prison terms. In a separate case, he plead no contest to vehicle theft and admitted to committing the crime while on bail. The trial court imposed the stipulated aggregate term of seven years eight months. The sentence was split, with the court ordering defendant to serve four years in custody and the remaining three years eight months in mandatory community supervision.
Nine months later, defendant wrote the trial court a letter dated May 2, 2016, captioned: "Memorandum of points and authorities in support of motion to modify sentence." He asked the court to modify his sentence by reducing the length of his custody time: "I'm simply requesting (respectfully) to do my existing time not in jail."
On May 24, 2016, the trial court ordered defendant's motion filed and summarily denied it. Defendant appealed from that order.
DISCUSSION
The right to appeal is statutory; an order is not appealable unless made so by statute. (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) "[A] criminal appeal by the defendant may be taken only from 'a final judgment of conviction' ([Pen. Code,] §§ 1237, subd. (a), 1466, subd. (2)(A)) or from 'any order made after judgment, affecting the substantial rights' of the party ([Pen. Code,] §§ 1237, subd. (b), 1466, subd. (2)(B))." (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.)
Here, the trial court's order denying the motion to modify the sentence did not affect defendant's substantial rights because the trial court lacked jurisdiction to modify the sentence. " '[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 exception applies here because more than 120 days had elapsed since defendant's commitment to prison. The trial court therefore lacked jurisdiction to modify the sentence.
Accordingly, the appeal must be dismissed. (See People v. Turrin, supra, 176 Cal.App.4th at p. 1208; accord, People v. Mendez (2012) 209 Cal.App.4th 32, 34.)
DISPOSITION
The appeal is dismissed.
HULL, J. We concur: BLEASE, Acting P. J. NICHOLSON, J.