People v. Superior Court (Cornelius)

Opinion

KLEIN, P. J.

The People of the State of California seek a writ of prohibition, which we have deemed a petition for a writ of mandate, directing respondent Superior Court of the State of California, for the County of Los Angeles, (1) to set aside its order of May 6, 1994, by which it vacated a state prison sentence pronounced on June 4, 1991, and granted probation to real party in interest, Sara Mae Cornelius, and (2) to remand Cornelius to the custody of the Department of Corrections for service of the term imposed.

Because the trial court lacked jurisdiction on May 6, 1994, to modify the judgment pronounced on June 4, 1991, the petition is granted.

Factual and Procedural Background

On April 1, 1991, Cornelius was convicted after court trial of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)

1

On June 4,1991, the trial court sentenced Cornelius to serve a term of two years in state prison, ordered her remanded into custody forthwith, exonerated the bail she previously had posted and set bail on appeal in the amount of $10,000. That same day Cornelius posted a bond securing the bail on appeal.

This court affirmed the judgment in full in an unpublished opinion filed July 6, 1993. (B060659). On September 14, 1993, remittitur was filed in the superior court.

On November 8, 1993, Cornelius filed a motion for reduction of the sentence on the grounds, inter alia, she was “clinically hypertensive and recovering from surgery on her reproductive organs at the time of the incident.”

[346]

The People resisted the motion on the ground the trial court lacked jurisdiction to modify the sentence imposed in that the 120-day statutory period for recalling the sentence had expired. (§ 1170, subd. (d).)

2

Cornelius responded application of the 120-day limit would be “unfair” in the circumstances of this case.