People v. Calhoun

California Court of Appeal Aug 8, 1977 No. Docket Nos. 28852, 29023Published

Before: Stephens

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Holding. The trial court lacks jurisdiction to repeatedly invoke Penal Code section 1168 to recall and modify a sentence, as the statute only permits such action within 120 days of the original commitment.

Issues

Does Penal Code section 1168 authorize a trial court to repeatedly recall and modify a sentence beyond the initial 120-day period?
Did the trial court act in excess of its jurisdiction by retaining section 1168 jurisdiction after resentencing the defendant?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“the clear import of the language is that the remedy can only be invoked within 120 days of the original commitment.”

“the trial court loses jurisdiction to reconsider a denial of probation once it has relinquished control of the defendant and execution of sentence has begun.”

Opinion

STEPHENS, J.

The People appeal from a judgment resentencing defendant to the California Institution for Women but retaining jurisdiction under section 1168 of the Penal Code to recall the sentence and grant probation. (2d Crim. No. 28852.) Defendant appeals from a subsequent order rescinding the latter portion of the prior sentence. (2d Crim. No. 29023.) The primary question facing us in these appeals is the scope of the trial court’s power under section 1168 of the Penal Code to recall and modify a sentence. We affirm the order striking out 1168 jurisdiction, rendering the People’s appeal from the earlier judgment moot.

The factual prologue to the instant rulings is undisputed. Defendant was convicted of second degree murder (Pen. Code, § 187) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and as to both counts was found to have used a firearm. After referral for a presentence diagnostic study under section 1203.03, she was sentenced to the California Institution for Women on October 2, 1975. The court requested further diagnostic study under section 1168 so that it might consider whether to recall the sentence and grant probation. The second diagnostic study, unlike the first, recommended probation. Consequently, the court held a limited hearing on the matter and recalled defendant’s commitment. On March 19, 1976, a hearing was held to determine defendant’s suitability for probation. At the conclusion of the hearing the court resentenced defendant to state prison, again invoking the provisions of section 1168 so that it might further consider defendant’s suitability for probation. Two months later the People interposed their appeal and immediately thereafter moved to annul that portion of the sentence retaining 1168 jurisdiction. On June 22, 1976, the court heard the People’s motion and, agreeing that it had acted in excess of its jurisdiction, struck the offending language from the March 19 sentence. Defendant’s appeal followed.

Discussion

At common law a trial court could revise any sentence during the term at which it was imposed as long as the sentence remained unexecuted.

[497]

(See, e.g.,

State

People v. Calhoun

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STEPHENS, J.

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