Opinion
C086212
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. REGINALD CHAVIS, SR., 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CR104529)
The trial court dismissed the request of defendant Reginald Chavis, Sr., to recall his sentence. Defendant appeals from this order. We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We will dismiss the appeal as from a nonappealable order. (People v. Mendez (2012) 209 Cal.App.4th 32, 34; People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.)
For defendant's 1991 crime of attempted murder with personal infliction of great bodily injury and personal use of a firearm, which he committed when he was 19 years old, the court imposed seven years to life with the possibility of parole plus an eight-year determinate term. Defendant appealed and this court affirmed the judgment in 1992. (People v. Timothy Demetrius Johnson & Reggie Chavis (June 30, 1992, C011920) [nonpub. opn.].) On August 18, 2017, defendant sought recall and resentencing pursuant to Penal Code section 1170, subdivision (d) (section 1170(d))., He argued his life sentence was excessive, disproportionate, and constituted cruel and unusual punishment, violating the Eighth Amendment of the federal Constitution and article I, section 17 of the California Constitution, and citing Roper v. Simmons (2005) 543 U.S. 551, 568, 574 [juveniles not eligible for death penalty], Graham v. Florida (2010) 560 U.S. 48, 74-75, 82 [juvenile convicted of a nonhomicide offense may not be sentenced to life without parole (LWOP)], Miller v. Alabama (2012) 567 U.S. 460, 465, 479 [mandatory LWOP sentence for juvenile offender violates prohibition against cruel and unusual punishment], People v. Caballero (2012) 55 Cal.4th 262, 265, 268-269 [extending Graham to juvenile offender who receives sentence which is functional equivalent of LWOP], and People v. Franklin (2016) 63 Cal.4th 261, 268-269, 279-280, 286 [youth offender parole hearing under Sen. Bill No. 260 rendered moot any infirmity in sentence under Miller].
Undesignated statutory references are to the Penal Code.
Section 1170(d) provides, in relevant part, as follows:
"(d)(1) When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison . . . and has been committed to the custody of the secretary . . . , the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, . . . 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. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
"(2)(A)(i) When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
"(ii) Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
"(B) The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the defendant's statement that he or she was under 18 years of age at the time of the crime and was sentenced to life in prison without the possibility of parole, the defendant's statement describing his or her remorse and work towards rehabilitation, and the defendant's statement that one of the following is true:
"(i) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
"(ii) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.
"(iii) The defendant committed the offense with at least one adult codefendant.
"(iv) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using selfstudy for selfimprovement, or showing evidence of remorse.
"(C) If any of the information required in subparagraph (B) is missing from the petition, or if proof of service on the prosecuting agency is not provided, the court shall return the petition to the defendant and advise the defendant that the matter cannot be considered without the missing information."
On November 21, 2017, the trial court dismissed defendant's request, finding it lacked jurisdiction to recall the sentence. The trial court also determined that defendant was not a juvenile offender when he committed the offense since he was not under the age of 18 years, nor was he sentenced to life without parole.
A defendant may appeal from any order after judgment affecting his substantial rights. (§ 1237, subd. (b).) Section 1170(d)(1) authorizes a sentencing court on its own motion to recall and resentence within 120 days of the original commitment. If the sentencing court fails to recall a sentence within 120 days of the original commitment, the court "loses 'own-motion' jurisdiction." (Dix v. Superior Court (1991) 53 Cal.3d 442, 464; see People v. Loper (2015) 60 Cal.4th 1155, 1165 (Loper).)
Here, the trial court sentenced defendant to state prison in 1991. Defendant filed his request to recall his sentence more than two decades later, on August 18, 2017. Since the 120-day period had long since lapsed when defendant filed his request to recall, the trial court no longer had jurisdiction under section 1170(d)(1) to recall the sentence to modify it. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1722, 1725 (Chlad); see Loper, supra, 60 Cal.4th at p. 1165.)
Section 1170(d)(2)(A)(i) provides: "When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing." Section 1170(d)(2)(B) provides, in relevant part, as follows: "The petition shall include the defendant's statement that he or she was under 18 years of age at the time of the crime and was sentenced to life in prison without the possibility of parole."
Here, in his request to recall his sentence, defendant states that he was 19 years of age at the time of the offense and that he was sentenced to seven years to life plus eight years with a minimum eligible parole date of June 11, 2002. He also states that his last parole suitability hearing occurred on May 31, 2017. Section 1170(d)(2) does not apply to defendant because he does not meet the eligibility requirements, that is, "under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole." The trial court had no jurisdiction to entertain his request to recall under section 1170(d)(2).
Since the trial court had no jurisdiction to modify defendant's sentence, the trial court's dismissal of defendant's request to recall his sentence could not have affected his substantial rights. Thus, we must dismiss the appeal. (Chlad, supra, 6 Cal.App.4th at p. 1726; see Loper, supra, 60 Cal.4th at pp. 1165-1166.)
DISPOSITION
The appeal is dismissed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
MAURO, J.