Opinion
C082618
05-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEE JONES, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 07F01802)
On July 1, 2016, defendant Jimmy Lee Jones filed a motion seeking resentencing of his 2008 convictions and requesting appointment of counsel. Defendant's convictions were for assault with a firearm and shooting at an occupied vehicle, with findings he was personally armed and discharged a firearm and committed the offenses for the benefit of or in association with a criminal street gang, and for unlawful possession of a firearm. (People v. Deloney (Aug. 4, 2011, C060503) [nonpub. opn.], pp. 1-3.) As authority for his motion, defendant cited Johnson v. United States (2015) ___ U.S. ___ [192 L.Ed.2d 569], which held that the residual clause of the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)), defining the statutory term "violent felony" as a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another," was void for vagueness. Defendant purports to appeal from the trial court's denial of his motion.
Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. We shall dismiss the appeal as taken from a nonappealable order.
" '[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 denying 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.) Accordingly, the appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
HULL, J. We concur: RAYE, P. J. HOCH, J.