People v. Roe

• Decision Date: 19 October 1983
• Docket Number: Cr. 15157
• Citation: 195 Cal.Rptr. 802,148 Cal.App.3d 112
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymond D. ROE, Defendant and Appellant.

Page 802

195 Cal.Rptr. 802

148 Cal.App.3d 112

The PEOPLE, Plaintiff and Respondent, v. Raymond D. ROE, Defendant and Appellant.

Cr. 15157.

Court of Appeal, Fourth District, Division 1, California.

Oct. 19, 1983.

Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, and Gary M. Bubis, San Diego, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., A. Wells Petersen and Pat Zaharopoulos, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Associate Justice.

In this case we examine the nature of the 120 day limitation on a trial court's authority to recall a sentence and commitment on its own motion and resentence a defendant. (Pen.Code, § 1170, subd. (d).) ¹ We conclude that limitation is jurisdictional, and thus the lower court lacked authority to resentence the defendant, Raymond D. Roe, nine months after originally pronouncing sentence. Rather than dismiss Roe's attempted appeal from the judgment purportedly entered upon resentencing, we treat that appeal as a petition for a writ of habeas corpus. Thus reaching the merits we conclude Roe's original sentence was authorized and properly imposed and must now be completed.

Factual and Procedural Background

During the course of his abortive nocturnal effort to burglarize Michele Reynolds' home, Roe severely beat Reynolds about her face and eyes. The injuries he inflicted required 22 stitches. When he committed the offense Roe was on parole from the California Rehabilitation Center where he had received treatment for drug addiction.

Roe pleaded guilty to first degree burglary (§ 459, former § 460, subd. 1) and inflicting great bodily injury (§ 12022.7) and agreed to a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754, 757-759, 159 Cal.Rptr. 696, 602 P.2d 396) in exchange for the dismissal of three prior felony conviction allegations and a second count charging assault (former § 245, subd. (a)) and inflicting great bodily injury. (§ 12022.7.) The district attorney also agreed to a maximum seven-year sentence and dismissed a two-count information (Health & Saf.Code, § 11352) in an unrelated case arising out of Roe's participation in two cocaine transactions.

On October 7, 1981 the court sentenced Roe to serve seven years, consisting of a four-year middle term for the burglary conviction (§ 461, subd. 1) plus the three-year enhancement. (§ 12022.7.) Judgment was entered the same day committing Roe to prison. At the October 7 hearing the court said it was sentencing Roe "... pursuant to 1170(d) of the Penal Code which does allow a modification if the Department of Corrections or if I decide to change the term upon the recommendation." On March 31, 1982 at an ex parte hearing the court issued an order to produce Roe for resentencing at a hearing to be held in May. Counsel for both the prosecution and defense attended the March 31 hearing. On April 23 the Department of Corrections filed a diagnostic study and evaluation of Roe as requested by the court. The unanimous recommendation of the department's study team was that no change be made in Roe's sentence and commitment. At a hearing on June 11 with Roe and both counsel in attendance the court set a "modification hearing" for July 8, 1982 and ordered the preparation of a supplemental probation report. In accordance with that report's recommendation, the court resentenced Roe on July 8 to a seven-year term identical to that originally imposed. Roe filed a timely notice of appeal from the judgment entered on July 8. Although the record does not clearly reflect when the court recalled Roe's sentence and commitment, it appears the court took those steps at the March 31 hearing.

Discussion

I

As a general rule, when a defendant is committed and execution of his sentence begins the trial court loses jurisdiction to reconsider a denial of probation (Holder v. Superior Court (1970) 1 Cal.3d 779, 783, 83 Cal.Rptr. 353, 463 P.2d 705; People v. Calhoun (1977) 72 Cal.App.3d 494, 497, 140 Cal.Rptr. 225) or to vacate or modify the sentence imposed. (People v. McAllister (1940) 15 Cal.2d 519, 526-527, 102 P.2d 1072, disapproved on another ground in People v. Thomas (1959) 52 Cal.2d 521, 534, 342 P.2d 889; People v. Clinton (1966) 243 Cal.App.2d 284, 288, 52 Cal.Rptr. 221.) There are, however, some exceptions to the rule. Trial courts, for instance, have the authority to correct clerical errors in recording sentences and judgments (In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729) and the obligation to correct the imposition of a sentence unauthorized by law. (People v. Massengale (1970) 10 Cal.App.3d 689, 693, 89 Cal.Rptr. 237.)

Section 1170, subdivision (d) represents a limited statutory exception to the general rule. That section provides in pertinent part:

"(d) 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 Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence...." (Italics added.)

The predecessor to section 1170, subdivision (d) was former section 1168. (Stats.1969, c. 990, § 1, pp. 1959-1960; see generally People v. Gainer (1982) 133 Cal.App.3d 636, 639-640, fn. 3, 184 Cal.Rptr. 120.) That section also authorized the trial court, under certain circumstances, to recall a sentence and commitment and to resentence a defendant on its own motion within 120 days of commitment. (Ibid.) The 120 day limitation on the exception allowed by former section 1168 was jurisdictional and could not be circumvented by successive invocations of that section's recall and resentencing authority. (People v. Calhoun, supra, 72 Cal.App.3d at p. 497, 140 Cal.Rptr. 225.) The trial court could exercise such authority only within the first 120 days of the original commitment. (Ibid.)

We think Calhoun 's strict jurisdictional interpretation of former section 1168's 120 day limitation should apply to the corresponding limitation of section 1170, subdivision (d). The statutory language on its face indicates the trial court's authority to recall and resentence may only be exercised within the first 120 days of the original commitment. (See People v. Laue (1982) 130 Cal.App.3d 1055, 1060, 182 Cal.Rptr. 99 (dictum).) Such an interpretation is consistent with legislative intent. Calhoun was decided shortly after the Legislature amended section 1170 to conform the language of subdivision (d)'s 120 day limitation to the corresponding language of former section 1168. (Compare stats. 1977, c. 165, § 15, p. 648 with stats. 1969, c. 990, § 1, p. 1960.) On five occasions after Calhoun 's publication the Legislature amended section 1170 without changing the language of subdivision (d)'s 120 day limitation. (Stats.1978, c. 579, § 29, p. 1989; stats. 1979, c. 255, § 8, p. 550; stats. 1980, c. 676, § 251, p. 1985; stats. 1980, c. 1117, § 7, p. 3596; stats. 1981, c. 1111, § 1, p. 4336.) The Legislature's repeated reenactment of that language without change indicates it intended Calhoun 's strict jurisdictional interpretation would apply to section 1170, subdivision (d). (People v. St. Martin (1970) 1 Cal.3d 524, 535, 83 Cal.Rptr. 166, 463 P.2d 390; Property Research Financial Corp. v. Superior Court (1972) 23 Cal.App.3d 413, 421-422, 100 Cal.Rptr. 233.) Any other interpretation allowing the trial court open-ended authority to vacate or modify a valid sentence would infringe on the power of the Legislature to establish a determinate sentencing system providing statutorily fixed terms for given crimes to be imposed by courts with limited discretion to vary those terms. (See § 1170, subd. (a)(1); People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)

Here, the Department of Corrections recommended no change be made in Roe's sentence and commitment, and the trial court's purported recall and resentencing occurred more than 120 days after Roe's original commitment. Consequently, the trial court was without jurisdiction to resentence Roe on July 8, 1982. Roe argues the People waived this jurisdictional defect by failing to raise it at the hearings held on March 31, June 11 and July 8, 1982. This argument overlooks the fact the court was without subject matter as well as personal jurisdiction once the first 120 days passed. (See In re Black (1967) 66 Cal.2d 881, 888-891, 59 Cal.Rptr. 429, 428 P.2d 293; People v. Helton (1979) 91 Cal.App.3d 987, 991, 154 Cal.Rptr. 482.) Subject matter jurisdiction cannot be conferred on the court by the consent of the parties. (In re Griffin (1967) 67 Cal.2d 343, 346-347, 62 Cal.Rptr. 1, 431 P.2d 625; People v. Perez (1961) 198 Cal.App.2d 460, 464-465, 18 Cal.Rptr. 164.)

II

Having concluded the 120 day limitation of section 1170, subdivision (d) is jurisdictional, we must now determine the proper manner for disposing Roe's appeal. Had the trial court resentenced Roe within the 120 day period, Roe could have appealed his new sentence by timely filing a notice of appeal. (§ 1237, subd. 1; People v. Flores (1974) 12 Cal.3d 85, 93, fn. 6, 115 Cal.Rptr. 225, 524 P.2d 353.) However, because the court acted after the 120 days had passed and thus lacked jurisdiction to resentence Roe, the judgment the court purportedly entered on July 8, 1982 is of no effect and cannot be appealed. (See People v. Behrmann (1949) 34 Cal.2d 459, 462, 211 P.2d 575.) Appellate courts routinely dismiss attempted appeals from nonappealable judgments and orders. (See, e.g., id., at pp. 462, 464, 211 P.2d 575; People v. Clinton, supra, 243 Cal.App.2d at p. 288, 52...