People v. Wagner CA1/5

Filed 11/22/24 P. v. Wagner CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A167339 v. MICHAEL THOMAS WAGNER, (Lake County Super. Ct. No. CR955051) Defendant and Appellant.

In July 2021, pursuant to a plea agreement with a stipulated sentence of 17 years, appellant Michael Thomas Wagner (appellant) entered a plea of no contest to assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with enhancements.1 In August, the trial court sentenced him pursuant to the agreement. In January 2023, appellant filed a motion to recall his sentence. The trial court denied the motion and the present appeal followed. Before we may address the merits of appellant’s claims, we must first determine whether the trial court had jurisdiction to consider appellant’s 2023 motion to recall his sentence, and whether we have appellate

1 All undesignated statutory references are to the Penal Code.The details of the underlying incident are not relevant to the issues on appeal.

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jurisdiction to entertain the appeal. (See Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [“The existence of an appealable judgment is a jurisdictional prerequisite to an appeal”].) If the trial court did not have jurisdiction to rule on appellant’s motion, the “ ‘order denying such a motion is nonappealable, and any appeal from such an order must be dismissed.’ ” (People v. King (2022) 77 Cal.App.5th 629, 634; see also People v. Torres (2020) 44 Cal.App.5th 1081, 1084–1085; People v. Chamizo (2019) 32 Cal.App.5th 696, 698.) Here, appellant concedes in his reply brief that “when appellant filed his request for recall and resentencing on January 23, 2023 [citation], the trial court had no jurisdiction to act on it.” As appellant correctly explains, “Under the then-extant version of . . . section 1172.1(a)(1), a court had no authority to recall and resentence on its own motion after 120 days. After 120 days had passed a court was then deprived of jurisdiction to recall and resentence a criminal defendant on its own motion once execution of the sentence had commenced. [Citation.] In its January 26, 2023, denial order, the trial court correctly observed, ‘The statutory time period to recall the sentence has expired.’ ” (Fn. omitted.) Appellant goes on to argue that “all that has changed” due to an amendment to section 1172.1, subdivision (a)(1), effective January 1, 2024. Under the current version of the statute, the trial court may, on its own motion, recall an offender’s sentence “at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.” (§ 1172.1, subd. (a)(1), as amended by Stats.