People v. Terrell CA3

Filed 12/12/23 P. v. Terrell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C098363

Plaintiff and Respondent, (Super. Ct. Nos. STKCRFE20010008359 & v. SF083165A )

EDWARD TERRELL,

Defendant and Appellant.

Appointed counsel for defendant Edward Terrell 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.) We dismiss the appeal as one from a nonappealable order but discuss the point defendant raises in his supplemental brief. FACTUAL AND PROCEDURAL BACKGROUND In February 2002, in San Joaquin County Superior Court case No. SF083165A, the prosecution charged defendant with second degree robbery. The prosecution alleged

1

defendant had two prior serious felony convictions both for robbery. A jury found defendant guilty of second degree robbery and, in June 2003, the trial court sentenced defendant to prison for 25 years to life. On March 1, 2023, defendant filed a motion in propia persona for recall and resentencing pursuant to Assembly Bill No. 1540 (2021-2022 Reg. Sess.) and Penal Code section 1172.1.1 The trial court denied defendant’s motion. The court noted the 120-day period within which it could recall and resentence defendant on its own motion had long since expired. No authorized official had recommended defendant’s sentence be recalled. And section 1172.1 does not authorize a defendant to move for recall and resentencing. The court concluded: “Because . . . the court lacks jurisdiction to resentence Defendant on its own motion and none of the authorized agencies have requested that Defendant be resentenced, the provisions of Assembly Bill 1540, as codified in . . . sections 1170 and 1172.1, are inapplicable . . . .” DISCUSSION Appointed counsel filed an opening brief setting forth the relevant background and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief that we address after discussing appealability. As to appealability, we conclude the trial court correctly determined it lacked jurisdiction to grant defendant relief on his motion pursuant to section 1172.1. “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