section 1170(d) request to resentence in California

2022The court had jurisdiction to correct the clerical error and file the second amended abstract of judgment even though there was a pending appeal. ( Alanis, supra, 158 Cal.App.4th at pp. 1473-1474.) As to the September 7, 2018, resentencing hearing, it was held in response to CDCR’s letter to the superior court, expressly advising the court to recall and resentence appellant pursuant to section 1170, subdivision (d), to correct the unauthorized imposition of both the great bodily injury and gang enhancements that were prohibited by Gonzalez.

2022The court had jurisdiction to correct the clerical error and file the second amended abstract of judgment even though there was a pending appeal. ( Alanis, supra, 158 Cal.App.4th at pp. 1473-1474.) As to the September 7, 2018, resentencing hearing, it was held in response to CDCR’s letter to the superior court, expressly advising the court to recall and resentence appellant pursuant to section 1170, subdivision (d), to correct the unauthorized imposition of both the great bodily injury and gang enhancements that were prohibited by Gonzalez.

2022The letter reflected that the court should not have imposed both the GBI and gang enhancements in light of People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez).

2020The letter stated that the court should not have imposed both the GBI and gang enhancements in light of People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez).

2019First, he argues that a defendant who is on probation subject to a previously imposed sentence whose execution is suspended still "remains to be sentenced" under section 1381 because the trial court still retains its power, under section 1170, subdivision (d), to "recall" that sentence "within 120 days of the date of [the defendant's] commitment" to custody and to "resentence the defendant" to a new and lesser sentence. (§ 1170, subd. (d).) We reject this argument because it overlooks that a court's power to recall and resentence under section 1170, subdivision (d) does not come into being unt

2019First, he argues that a defendant who is on probation subject to a previously imposed sentence whose execution is suspended still "remains to be sentenced" under section 1381 because the trial court still retains its power, under section 1170, subdivision (d), to "recall" that sentence "within 120 days of the date of [the defendant's] commitment" to custody and to "resentence the defendant" to a new and lesser sentence. (§ 1170, subd. (d).) We reject this argument because it overlooks that a court's power to recall and resentence under section 1170, subdivision (d) does not come into being unt

2019(See Dix v. Superior Court (1991) 53 Cal.3d 442 , 464, 279 Cal.Rptr. 834 , 807 P.2d 1063 .) Indeed, "the court loses 'own-motion' jurisdiction if it fails to recall a sentence within 120 days of the original commitment. [Citations.]" ( Ibid. ) Defendant was committed to state prison and judgment was rendered when the trial court imposed sentence on March 19, 2015. *135 Defendant's motion for resentencing was not based on the trial court's limited authority to resentence under § 1170, subdivision (d).

2019(See Dix v. Superior Court (1991) 53 Cal.3d 442 , 464, 279 Cal.Rptr. 834 , 807 P.2d 1063 .) Indeed, "the court loses 'own-motion' jurisdiction if it fails to recall a sentence within 120 days of the original commitment. [Citations.]" ( Ibid. ) Defendant was committed to state prison and judgment was rendered when the trial court imposed sentence on March 19, 2015. *135 Defendant's motion for resentencing was not based on the trial court's limited authority to resentence under § 1170, subdivision (d).

2019First, he argues that a defendant who is on probation subject to a previously imposed sentence whose execution is suspended still "remains to be sentenced" under section 1381 because the trial court still retains its power, under section 1170, subdivision (d), to "recall" that sentence "within 120 days of the date of [the defendant's] commitment" to custody and to "resentence the defendant" to a new and lesser sentence. (§ 1170, subd. (d).) We reject this argument because it overlooks that a court's power to recall and resentence under section 1170, subdivision (d) does not come into being unt

2019First, he argues that a defendant who is on probation subject to a previously imposed sentence whose execution is suspended still "remains to be sentenced" under section 1381 because the trial court still retains its power, under section 1170, subdivision (d), to "recall" that sentence "within 120 days of the date of [the defendant's] commitment" to custody and to "resentence the defendant" to a new and lesser sentence. (§ 1170, subd. (d).) We reject this argument because it overlooks that a court's power to recall and resentence under section 1170, subdivision (d) does not come into being unt

2025Because the error was a 3 Because Varela was a minor at the time of the crimes, he also filed a petition for recall and resentence under section 1170, subdivision (d)(1) and a motion to augment the record pursuant to People v. Franklin (2016) 63 Cal.4th 261 .

2025(Andrews, supra, E080840.) On November 18, 2024, defendant filed a form petition for recall and resentence pursuant to section 1170, subdivision (d)(1) and People v. Heard (2022) 83 Cal.App.5th 608 (Heard).

2023(People v. Strong (2022) 13 Cal.5th 698 , 713- 714; cf. People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [relief inmate sought under a petition to resentence under § 1170, subd. (d), was not available under that statute and, therefore, trial court had no jurisdiction to grant the relief and the order denying such relief was not reviewable on appeal].) As a result, none of defendant’s arguments are properly before us: His attack on the sufficiency of the evidence at his trial seeks to relitigate the validity of his conviction; his attorney in this appeal acted 4 correctly in not raising this i

2023(People v. Salgado (2022) 82 Cal.App.5th 376 , 380.) Further, the only issue properly presented in this appeal— the correctness of the trial court’s denial of defendant’s section 1172.6 petition—was decided correctly.

2021(People v. Abdullah (2019) 38 Cal.App.5th 218 , review denied and depublished Oct. 30, 2019, S257756.) We therefore ordered supplemental briefing providing additional authority, if any, supporting the People’s argument that defendant is not entitled to remand because the trial court merely corrected an unauthorized sentence and did not resentence defendant under section 1170, subdivision (d)(1).

2021(See, e.g., People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 ; People v. Hernandez (2019) 34 Cal.App.5th 323, 326 (Hernandez); People v. Alexander (2020) 45 Cal.App.5th 341 , 344.) 5 An exception applies, however, when the trial court acts under its authority to resentence a defendant pursuant to section 1170, subdivision (d).

2020(People v. Buckhalter (2001) 26 Cal.4th 20, 23 , 40-41; § 2900.1.) We remand the case with directions to recalculate custody credits on remand.

2019(See, e.g., Holder v. Superior Court (1970) 1 Cal.3d 779 , 782, 83 Cal.Rptr. 353 , 463 P.2d 705 ; People v. Delson (1984) 161 Cal.App.3d 56 , 62, 207 Cal.Rptr. 244 .) *901 When enacting the determinate sentencing law, the legislature removed the requirement for a diagnostic study but retained the court's authority to recall and resentence defendants in section 1170, subdivision (d). 4 ( Dix , supra , 53 Cal.3d at p. 458 , 279 Cal.Rptr. 834 , 807 P.2d 1063 .) The statute states that "[t]he court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as t

2019(See, e.g., Holder v. Superior Court (1970) 1 Cal.3d 779 , 782, 83 Cal.Rptr. 353 , 463 P.2d 705 ; People v. Delson (1984) 161 Cal.App.3d 56 , 62, 207 Cal.Rptr. 244 .) *901 When enacting the determinate sentencing law, the legislature removed the requirement for a diagnostic study but retained the court's authority to recall and resentence defendants in section 1170, subdivision (d). 4 ( Dix , supra , 53 Cal.3d at p. 458 , 279 Cal.Rptr. 834 , 807 P.2d 1063 .) The statute states that "[t]he court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as t

2019Drawing on section 1381 's pedigree as a declaratory supplement to the constitutional right to a speedy trial ( Barker v. Municipal Court of Salinas Judicial Dist. (1966) 64 Cal.2d 806 , 812-813, 51 Cal.Rptr. 921 , 415 P.2d 809 ), defendant cites several purposes served by the constitutional guarantee and, by extension, section 1381 : (1) "avoiding prolonged imprisonment"; (2) "limiting anxiety attendant to an unresolved criminal charge"; and (3) "reducing the effect of lapse of time on trial witnesses and providing the opportunity for imposition of concurrent sentence[s]." ( Wagner , supra ,

2019Drawing on section 1381 's pedigree as a declaratory supplement to the constitutional right to a speedy trial ( Barker v. Municipal Court of Salinas Judicial Dist. (1966) 64 Cal.2d 806 , 812-813, 51 Cal.Rptr. 921 , 415 P.2d 809 ), defendant cites several purposes served by the constitutional guarantee and, by extension, section 1381 : (1) "avoiding prolonged imprisonment"; (2) "limiting anxiety attendant to an unresolved criminal charge"; and (3) "reducing the effect of lapse of time on trial witnesses and providing the opportunity for imposition of concurrent sentence[s]." ( Wagner , supra ,

2019(See, e.g., Holder v. Superior Court (1970) 1 Cal.3d 779 , 782, 83 Cal.Rptr. 353 , 463 P.2d 705 ; People v. Delson (1984) 161 Cal.App.3d 56 , 62, 207 Cal.Rptr. 244 .) *901 When enacting the determinate sentencing law, the legislature removed the requirement for a diagnostic study but retained the court's authority to recall and resentence defendants in section 1170, subdivision (d). 4 ( Dix , supra , 53 Cal.3d at p. 458 , 279 Cal.Rptr. 834 , 807 P.2d 1063 .) The statute states that "[t]he court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as t

2019(See, e.g., Holder v. Superior Court (1970) 1 Cal.3d 779 , 782, 83 Cal.Rptr. 353 , 463 P.2d 705 ; People v. Delson (1984) 161 Cal.App.3d 56 , 62, 207 Cal.Rptr. 244 .) *901 When enacting the determinate sentencing law, the legislature removed the requirement for a diagnostic study but retained the court's authority to recall and resentence defendants in section 1170, subdivision (d). 4 ( Dix , supra , 53 Cal.3d at p. 458 , 279 Cal.Rptr. 834 , 807 P.2d 1063 .) The statute states that "[t]he court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as t

2019Drawing on section 1381 's pedigree as a declaratory supplement to the constitutional right to a speedy trial ( Barker v. Municipal Court of Salinas Judicial Dist. (1966) 64 Cal.2d 806 , 812-813, 51 Cal.Rptr. 921 , 415 P.2d 809 ), defendant cites several purposes served by the constitutional guarantee and, by extension, section 1381 : (1) "avoiding prolonged imprisonment"; (2) "limiting anxiety attendant to an unresolved criminal charge"; and (3) "reducing the effect of lapse of time on trial witnesses and providing the opportunity for imposition of concurrent sentence[s]." ( Wagner , supra ,

2019Drawing on section 1381 's pedigree as a declaratory supplement to the constitutional right to a speedy trial ( Barker v. Municipal Court of Salinas Judicial Dist. (1966) 64 Cal.2d 806 , 812-813, 51 Cal.Rptr. 921 , 415 P.2d 809 ), defendant cites several purposes served by the constitutional guarantee and, by extension, section 1381 : (1) "avoiding prolonged imprisonment"; (2) "limiting anxiety attendant to an unresolved criminal charge"; and (3) "reducing the effect of lapse of time on trial witnesses and providing the opportunity for imposition of concurrent sentence[s]." ( Wagner , supra ,

2004In a criminal case, the failure of the information to state facts sufficient to negative the statute of limitations is a jurisdictional defect. ( People v. Posten (1980) 108 Cal.App.3d 633, 648 , 166 Cal.Rptr. 661 .) . . ." [5] Goddard contends that our decision in Estate of Dean (1906) 149 Cal. 487 , 87 P. 13 establishes that a trial court acts in excess of jurisdiction if it conducts a trial in a party's absence without proof that the absent party received notice. ( Id. at pp. 491-493, 87 P. 13 .) Not so.

2004In a criminal case, the failure of the information to state facts sufficient to negative the statute of limitations is a jurisdictional defect. ( People v. Posten (1980) 108 Cal.App.3d 633, 648 , 166 Cal.Rptr. 661 .) . . ." [5] Goddard contends that our decision in Estate of Dean (1906) 149 Cal. 487 , 87 P. 13 establishes that a trial court acts in excess of jurisdiction if it conducts a trial in a party's absence without proof that the absent party received notice. ( Id. at pp. 491-493, 87 P. 13 .) Not so.

2004In a criminal case, the failure of the information to state facts sufficient to negative the statute of limitations is a jurisdictional defect. ( People v. Posten (1980) 108 Cal.App.3d 633, 648 , 166 Cal.Rptr. 661 .) . . ." [5] Goddard contends that our decision in Estate of Dean (1906) 149 Cal. 487 , 87 P. 13 establishes that a trial court acts in excess of jurisdiction if it conducts a trial in a party's absence without proof that the absent party received notice. ( Id. at pp. 491-493, 87 P. 13 .) Not so.

2004In a criminal case, the failure of the information to state facts sufficient to negative the statute of limitations is a jurisdictional defect. ( People v. Posten (1980) 108 Cal.App.3d 633, 648 , 166 Cal.Rptr. 661 .) . . ." [5] Goddard contends that our decision in Estate of Dean (1906) 149 Cal. 487 , 87 P. 13 establishes that a trial court acts in excess of jurisdiction if it conducts a trial in a party's absence without proof that the absent party received notice. ( Id. at pp. 491-493, 87 P. 13 .) Not so.

1993Instead, that section permits a court to recall a sentence “on its own motion.” (§ 1170, subd. (d), italics added; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725 [ 8 Cal.Rptr.2d 610 ]; People v. Gainer (1982) 133 Cal.App.3d 636, 641 [ 184 Cal.Rptr. 120 ]; People v. Niren (1978) 76 *194 Cal.App.3d 850, 851 [ 143 Cal.Rptr. 130 ].) Consequently, the courts have uniformly held that an order denying a defendant’s request to resentence pursuant to section 1170 subdivision (d) is not appealable as an order affecting the substantial rights of the party.