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People v. Thomas

California Court of Appeals, Fifth District
Mar 19, 2008
No. F052862 (Cal. Ct. App. Mar. 19, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DEVELLE ONEAL THOMAS, Defendant and Appellant. F052862 California Court of Appeal, Fifth District March 19, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge, Super. Ct. No. MCR13331

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

Before Harris, Acting P.J., Wiseman, J. and Kane, J.

On May 12, 2003, appellant pled guilty to one count of violating Health and Safety Code section 11352, subdivision (a) (selling/transporting cocaine) and admitted that he had previously been convicted of violating Health and Safety Code section 11352, subdivision (a) and Health and Safety Code section 11351.5 (possession of cocaine base for sale) within the meaning of Health and Safety Code section 11370.2, subdivision (a). On July 8, 2003, he was sentenced to the upper term of five years and to a consecutive three-year term for the Health and Safety Code section 11370.2 enhancement for a total prison term of eight years.

On September 9, 2004, appellant was resentenced in the current case and, in addition, on two counts in a different case for violating Health and Safety Code sections 11351.5 and 11352, subdivision (a), and received an aggregate term of ten years and eight months.

In February 2007, appellant filed a motion for modification of the 2003 sentence pursuant to Penal Code section 1170. The trial court set the matter for resentencing and on May 2, 2007, resentenced appellant to the previously imposed eight-year prison term. On May 7, 2007, appellant filed a notice of appeal from the judgment entered on May 2, 2007.

Appellant contends that the imposition of the upper term violates his Sixth and Fourteenth Amendment rights under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. Respondent contends that the lower court was without jurisdiction to resentence appellant more than 120 days after his original sentencing and that therefore the appeal should be dismissed; and, in the alternative, respondent argues that the upper term sentence was a lawful sentence under Cunningham. In his supplemental opening brief, appellant requests that the court treat his claim as a petition for writ of habeas corpus should the court decide that the appeal should be dismissed due to lack of jurisdiction.

Appellant appeals from his resentencing that occurred on May 2, 2007, almost two and one-half years after his original sentencing. The resentencing was conducted pursuant to Penal Code section 1170, subdivision (d). That statute permits the court to recall a sentence “within 120 days of the date of commitment.” The 120-day period within which appellant could have sought modification of sentence from the sentence imposed in September 2004 expired in January 2005. This 120-day period within which the court may recall a sentence and resentence is jurisdictional. (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1757.) Thus, the trial court was without jurisdiction to resentence appellant in May 2007. The judgment entered on May 2, 2007, is, therefore, null and void.

Respondent asks this court to dismiss the appeal. Where the judgment is void, the proper disposition is to reverse the judgment. (People v. Alanis (2008) 158 Cal.App.4th 1467 [after pleading guilty and being sentenced, the defendant’s notice of appeal deprived the trial court of jurisdiction to recall sentence for an improper purpose; proper disposition is to reverse void judgment].)

Even if this court were to treat appellant’s appeal as a petition for writ of habeas corpus, appellant’s contention that the imposition of the upper term was unlawful is without merit. Appellant contends that “The existence of a single ‘proper’ factor in aggravation in the instant case is not sufficient to justify imposition of the upper term.” Appellant concedes that “[T]he court in the instance case arguably relied on one constitutionally sound factor.” That is all that is required, namely, that at least one constitutionally sound factor existed to make appellant “eligible” for the upper term. If a defendant is eligible for the upper term and one constitutionally sound factor exists, the constitution permits the trial court to rely on other aggravating circumstances regardless of whether the facts underlying those circumstances have been found to be true by a jury. (People v. Black (2007) 41 Cal.4th 799, 813.) Since appellant had prior convictions, which rendered him eligible for the upper term, the fact that other circumstances were relied upon in imposing the upper term that were not admitted by appellant or found true beyond a reasonable doubt by a jury does not render imposition of the upper term unconstitutional.

DISPOSITION

The May 2, 2007 judgment is reversed as void. The earlier judgment entered on September 9, 2004 remains in effect.


Summaries of

People v. Thomas

California Court of Appeals, Fifth District
Mar 19, 2008
No. F052862 (Cal. Ct. App. Mar. 19, 2008)
Case details for

People v. Thomas

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEVELLE ONEAL THOMAS, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Mar 19, 2008

Citations

No. F052862 (Cal. Ct. App. Mar. 19, 2008)