Opinion
F081123
06-21-2021
THE PEOPLE, Plaintiff and Respondent, v. CARLOS RIVAS, Defendant and Appellant.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF168686A Michael G. Bush, Judge.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appointed counsel for appellant Carlos Rivas asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Rivas was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. To date, he has not filed one.
Rivas appeals from the trial court's denial of his post-judgment motion to modify his sentence by striking sentencing enhancements based upon his prior prison terms (Pen. Code, § 667.5) and prior serious felony convictions (§ 667, subd. (a)(1)). Rivas's request for resentencing was filed pursuant to section 1170, subdivision (d)(1). We dismiss the appeal.
All undefined statutory citations are to the Penal Code unless otherwise indicated.
BACKGROUND
On December 20, 2017, Rivas entered an open plea of no contest to carjacking (§ 215, subd. (a)), reckless evasion (Veh. Code, § 2800.2), taking a vehicle without the owner's consent (Veh. Code, § 10851), and resisting arrest (§ 148). In addition, he admitted two prior serious felony convictions (§ 667, subd. (a)(1)), two prior strikes (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and four prior prison terms (§ 667.5, subd. (b)). The trial court indicated it had intended to impose a suspended prison sentence of 24 years eight months. Rivas waived his right to challenge the term of his suspended sentence.
On January 18, 2018, the trial court struck the prior strike allegations and sentenced Rivas consistent with its indicated sentence. The trial court imposed the sentence but suspended its execution and placed Rivas on formal probation for a term of four years. Rivas did not appeal from this order.
Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393) amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court, in its discretion, to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)
On October 30, 2019, Rivas contends the trial court ordered his suspended sentence into execution. There is nothing in the record to corroborate his claim that his sentence was ordered into execution on this date. There is also no indication in the record showing that Rivas appealed from his sentence.
On January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) went into effect. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) Under the statute, a one-year prior prison term enhancement will only apply if a defendant served the prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.)
On February 26, 2020, acting in propria persona, Rivas filed a request for information concerning resentencing pursuant to section 1170, subdivision (d). Rivas specifically sought information concerning the application of Senate Bill Nos. 1393 and 136 to his sentence. His request was filed 119 days after Rivas contends the trial court had ordered the suspended sentence into execution.
On March 16, 2020, the trial court treated Rivas's request for information as a motion, and denied it. The order of denial noted Rivas's “[c]ase is final.”
On April 14, 2020, Rivas filed a timely notice of appeal.
DISCUSSION
Rivas's motion for resentencing was filed pursuant to section 1170, subdivision (d)(1). Section 1170, subdivision (d)(1) allows the trial court, within 120 days of the date of the original commitment to recall a defendant's sentence and to resentence the defendant on the court's own motion. (§ 1170, subd. (d)(1).) The statute also authorizes the Board of Parole Hearings, the county correctional administrator, or the district attorney to initiate recall and resentencing “at any time.” (§ 1170, subd. (d)(1).) However, section 1170, subdivision (d)(1), does not permit a defendant to move for recall and resentencing. (People v. Pritchett (1993) 20 Cal.App.4th 190, 193 [“[s]ection 1170 subdivision (d) does not confer standing on a defendant to initiate a motion to recall a sentence”].)
Nonetheless, defendants have regularly invited trial courts to exercise their “own motion” jurisdiction to recall their sentences pursuant to section 1170, subdivision (d)(1), for purposes of resentencing. (People v. Loper (2015) 60 Cal.4th 1155, 1167.) Here, the trial court treated Rivas's request for information as a motion inviting the court to recall his sentence. Thus, although he did not have standing to make the request in the first instance, we presume that alone does not foreclose Rivas from appealing the trial court's order denying his request. (See id. at p. 1167, discussing People v. Carmony (2004) 33 Cal.4th 367, 376 [“the defendant's inability to move to dismiss [a strike conviction] under section 1385 should not... preclude him or her from raising the erroneous failure to do so on appeal”].)
We must however dismiss the appeal because the trial court lost its “own motion” jurisdiction to recall Rivas's sentence once the 120-day timeframe had expired. Assuming Rivas's suspended sentence was ordered executed on October 30, 2019, the 120-day timeframe had expired by the time the trial court issued its order of denial on March 16, 2020. Although Rivas's motion may have been submitted within the 120-day timeframe, the trial court was under no duty to render a timely decision upon his request. (See Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1836 [finding the defendant was not entitled to relief pursuant to a writ of mandamus because the trial court had no clear duty to act upon a defendant's request for resentencing under § 1170, subd. (d)(1).) Thus, the trial court's March 16, 2020 order of denial is not an appealable order.
“ ‘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.' ” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) An order made after judgment affecting the defendant's substantial rights is appealable (§ 1237, subd. (b)). However, the trial court lost jurisdiction to recall Rivas's sentence on its own motion after 120 days from his commitment to prison. (Dix v. Superior Court (1991) 53 Cal.3d 442, 464 [“[c]ases under... [Penal Code] section 1170(d)... have held that the court loses ‘own-motion' jurisdiction if it fails to recall a sentence within 120 days of the original commitment”].) Because the trial court was without jurisdiction to consider Rivas's motion once the 120-day timeframe had expired, denial of the motion could not have adversely impacted Rivas's substantial rights. (See People v. Chamizo (2019) 32 Cal.App.5th 696, 700; see also People v. Roe (1983) 148 Cal.App.3d 112, 118 [judgment entered by the court after losing its jurisdiction under § 1170, subd. (d), has no effect and cannot be appealed].)
This court has discretion to treat Rivas's appeal as a petition for writ of habeas corpus. (§ 1487, subd. 1; In re Brown (1973) 9 Cal.3d 612, 624-625.) However, even if we were to reach the merits of Rivas's motion, we would conclude that he is not entitled to relief. Section 1170, subdivision (d)(1), expressly authorizes the court in resentencing a defendant to consider “ ‘postconviction factors, including, but not limited to, the inmate's disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate's risk for future violence, and evidence that reflects that circumstances have changed since the inmate's original sentencing so that the inmate's continued incarceration is no longer in the interest of justice.' ” (People v. McCallum (2020) 55 Cal.App.5th 202, 210.) Rivas's motion fails to present any information or mitigating evidence that would support recall of his sentence.
Although we do not agree with the trial court's articulated reason for denying Rivas's motion, we are unable to conclude Rivas was otherwise entitled to relief based upon the limited record before us. We therefore decline to exercise our discretion to treat Rivas's appeal as a petition for writ of habeas corpus.
Finding no arguable issues upon this record (Wende, supra, 25 Cal.3d at pp. 441-442), we dismiss the appeal.
Footnote Matter Not Available.
DISPOSITION
The appeal is dismissed.
[*] Before Franson, Acting P.J., Smith, J. and Meehan, J.