People v. Kennedy CA1/1

Filed 8/30/22 P. v. Kennedy CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A162621 v. MICHAEL D. KENNEDY, (Solano County Super. Ct. No. VCR233950 & Defendant and Appellant. VCR227041)

Under former Penal Code section 1170, subdivision (d) 1, a trial court has 120 days to recall a sentence on its own motion. After that, it loses jurisdiction. Appellant Michael D. Kennedy was sentenced to an aggregate term of seven years in state prison after the trial court revoked his probation. On the 119th day after he was sentenced, appellant filed a “Motion to Request a Recall of Sentence” asking the trial court to recall and modify his sentence pursuant to section 1170, subdivision (d). The court held a hearing on the motion and declined to modify his sentence. We address the narrow

After this appeal was filed, Penal Code section 1170, subdivision (d) 1

was renumbered to 1170.03 (Stats. 2021, ch. 719 § 3.1 (AB 1540), effective January 1, 2022). That section was subsequently amended and renumbered 1172.1 (Stats. 2022, ch. 58 (AB 200), § 9, effective June 30, 2022.) The relevant provisions of the former subdivisions are unchanged. (See, section 1170.03, subd. (a)(1) and 1172.1 subd. (a)(1).)

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question of whether the filing of appellant’s motion requesting the court to recall its sentence constitutes a timely recall of the sentence by the court on its own motion. We conclude that it does not and the court was without jurisdiction to consider the motion or to recall the sentence after 120 days. Because the trial court no longer had jurisdiction to recall the sentence or to issue its order this appeal must be dismissed because it was taken from an unappealable order. FACTUAL AND PROCEDURAL BACKGROUND On July 8, 2019, appellant pleaded no contest to inflicting corporal injury on a former dating partner (Pen. Code, § 273.5)2 and admitted personally inflicting great bodily injury (§ 12022.7, subd. (e)) in case No. VCR227041. He also pleaded no contest to making criminal threats (§ 422) in case No. VCR233950.3 On September 9, 2019, the trial court suspended imposition of sentence and placed appellant on probation for three years in both cases, to be served concurrently. On July 31, 2020, the trial court found that appellant had violated the terms of his probation and revoked probation. On September 18, 2020, the trial court denied appellant a further grant of probation and sentenced him to a total of seven years in state prison: a three-year midterm for the violation of section 273.5, and four years for the great bodily injury enhancement under section 12022.7, subdivision (e). The