People v. Pope CA3

Filed 8/7/23 P. v. Pope CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C097564

Plaintiff and Respondent, (Super. Ct. No. 03F00237)

v.

JACOBY NEHEMIAH POPE,

Defendant and Appellant.

Appointed counsel for defendant Jacoby Nehemiah Pope has asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Because we conclude defendant has appealed from a nonappealable order, we will dismiss the appeal.

FACTS AND HISTORY OF THE PROCEEDINGS In 2004, a jury found defendant Jacoby Nehemiah Pope guilty of attempted murder and discharging a firearm at an occupied motor vehicle and found true firearm

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enhancement allegations for each offense. The trial court sentenced defendant to 58 years eight months to life in prison, which included two terms of 25 years to life in prison for the firearm enhancements. In 2022, defendant filed a motion asking the trial court to resentence him and dismiss the enhancements, pursuant to recently enacted amendments to the Penal Code. The trial court denied the motion because the recent amendments did not apply to defendant’s firearm enhancements. Defendant timely appealed from the order denying his motion.

DISCUSSION Defendant’s motion asked the trial court to resentence him and dismiss the firearm enhancements from his sentence. We conclude that none of the new statutes defendant relies on give the trial court jurisdiction over defendant’s sentence. Because the trial court lacked jurisdiction to grant any relief that would affect defendant’s substantial rights, he may not appeal from the postjudgment order denying his motion. “Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.” (People v. Karaman (1992) 4 Cal.4th 335, 344.) Specifically, once “the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant.” (Ibid.) There are statutory exceptions to this rule, which grant trial courts jurisdiction to recall and modify sentences in certain circumstances. (See, e.g., Pen. Code, §§ 1170.126, 1170.18, 1172.1-1172.6; statutory section citations that follow are found in the Penal Code unless otherwise stated.) But, “[u]nless an exception to the general rule applies, the trial court did not have jurisdiction to rule on [defendant’s] motion and the appeal must be dismissed.” (People v. Torres (2020) 44 Cal.App.5th 1081, 1084.) The statutes defendant relies on do not create such an exception.