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People v. Chlad

California Court of Appeal · D014686 · 1992-05-18 · Published · 6 Cal. App. 4th 1719 · 8 Cal. Rptr. 2d 610 · 92 Cal. Daily Op. Serv. 4772 · 92 Daily Journal DAR 7525 · 1992 Cal. App. LEXIS 719

The PEOPLE, Plaintiff and Respondent, v. GARY CHLAD, Defendant and Appellant

Proceeding
appeal from Superior Court of San Diego County, No. CR112893, Frank A. Brown, Judge. [fn*] [fn*] Judge
Trial court
Superior Court of San Diego County
Trial judge
Frank A. Brown
Outcome
dismissed — The appeal is dismissed.
Area
criminal
Panel
Daniel J. Kremer (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:33Z · confidence high

The trial court denied Chlad's motion to modify his sentence, concluding it lacked jurisdiction under Penal Code section 1170, subdivision (d) because the 120-day statutory period had expired. The Court of Appeal affirmed the denial of the motion on the merits and dismissed the appeal as non-appealable because the order did not affect Chlad's substantial rights.

Ruling reviewedStandardThe courtThe model
Denial of motion to modify sentence under Penal Code section 1170, subdivision (d)
“We conclude the trial court was without jurisdiction to recall Chlad’s sentence and properly denied his motion to modify sentence.”
de novocorrectagree with court
The appellate court correctly applied the holding in Dix v. Superior Court that a trial court loses 'own-motion' jurisdiction to recall a sentence if it fails to act within 120 days of commitment. The record shows the trial court did not recall the sentence until March 7, 1991, which was after the 120-day period expired on January 9, 1991. Therefore, the trial court lacked jurisdiction to resentence, and the denial of the motion was legally correct.
Appealability of the order denying the motion to modify sentence
“The trial court’s April 12 order denying Chlad’s motion to modify sentence is not an appealable order.”
de novocorrectagree with court
The court correctly determined that the order was entered after judgment and thus appealable only if it affected substantial rights. Citing People v. Druschel and People v. Gainer, the court found that a defendant lacks standing to initiate a section 1170(d) recall, meaning the denial of such a motion does not affect substantial rights. Additionally, because the trial court lacked jurisdiction, the order had no legal effect.
Treatment of appeal as a petition for writ of habeas corpus
“Thus, even were we to treat this appeal as a petition for habeas corpus, Chlad has failed to establish grounds for relief.”
de novocorrectagree with court
The court correctly applied the standard from People v. Olken that habeas corpus lies only when a court acts in excess of its jurisdiction. Since the trial court's original sentencing was within its jurisdiction and the subsequent denial of the motion was a valid exercise of its lack of jurisdiction (i.e., it did not act in excess), there was no basis for habeas relief.

Authorities

  • relied: Dix v. Superior Court (1991) 53 Cal.3d 442 — A trial court loses 'own-motion' jurisdiction to recall a sentence under Penal Code section 1170, subdivision (d) if it fails to recall the sentence within 120 days of the original commitment.
  • relied: People v. Druschel (1982) 132 Cal.App.3d 667 — A defendant has no standing to make a motion for recall of sentence pursuant to Penal Code section 1170, subdivision (d), and the denial of such a motion does not affect the defendant's substantial rights.
  • relied: People v. Gainer (1982) 133 Cal.App.3d 636 — Supports the proposition that a defendant lacks standing to initiate a section 1170(d) recall proceeding.
  • relied: People v. Roe (1983) 148 Cal.App.3d 112 — A judgment entered by a court after it has lost its jurisdiction under section 1170, subdivision (d) has no effect and cannot be appealed; habeas corpus may be used to challenge judicial acts in excess of jurisdiction.
  • relied: People v. Olken (1981) 125 Cal.App.3d 1064 — To obtain habeas relief, a defendant must show that the trial court exceeded its jurisdiction in some manner.
  • relied: People v. Perez (1979) 23 Cal.3d 545 — Judgment is synonymous with the imposition of sentence.
  • relied: Franklin v. Municipal Court (1972) 26 Cal.App.3d 884 — Mandate may not issue to compel action which is not within the court's jurisdiction.

The appellate opinion: sound — The opinion is sound because it correctly applies the strict jurisdictional limits of Penal Code section 1170, subdivision (d) as defined in Dix v. Superior Court, and accurately cites binding precedent regarding the lack of defendant standing to initiate such recalls. It thoroughly addresses the appealability issue by linking the lack of jurisdiction to the 'substantial rights' requirement of section 1237.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

The trial court, after initially granting Gary Chlad's motion to modify his 14-year robbery sentence under Penal Code section 1170, subdivision (d), denied the motion on April 12, 1991, concluding that the 120-day period for recalling the sentence had expired and it lacked jurisdiction to resentence him. The Court of Appeal held the trial court correctly found it lacked jurisdiction because its November 26, 1990 nunc pro tunc order was not a recall of sentence, held the April 12 order was not appealable because a defendant has no standing to bring a section 1170(d) motion and its denial did not affect his substantial rights, declined to treat the appeal as a habeas corpus or mandate petition, and dismissed the appeal.

Ruling reviewedStandardThe courtThe model
Trial court's April 12, 1991 determination that it lacked jurisdiction under section 1170(d) to recall and resentence Chlad because the 120-day period had expired, and its resulting denial of the motion to modify sentence
“We conclude the trial court was without jurisdiction to recall Chlad’s sentence and properly denied his motion to modify sentence.”
de novocorrectagree with court
Dix v. Superior Court squarely holds that own-motion jurisdiction is lost unless the court actually recalls the sentence within 120 days of commitment. The November 26, 1990 order only amended the docket nunc pro tunc to note sentencing 'under PC 1170(d)' and the judge's own statements show he intended merely to preserve an option, not to vacate the sentence; the first act purporting to recall was March 7, 1991, well past the January 9, 1991 deadline. The Director's diagnostic study recommended no change, so the alternative 'at any time upon recommendation' route was not triggered. The court's reading of the record and of Dix is sound.
Appellate determination (on the Attorney General's motion to dismiss) that the April 12 post-judgment order was not appealable under section 1237, subdivision (b) because Chlad lacked standing to move under section 1170(d) and the court had no jurisdiction, so the order did not affect his substantial rights
“The trial court’s April 12 order denying Chlad’s motion to modify sentence is not an appealable order.”
de novocorrectagree with court
Druschel and Gainer hold a defendant has no standing to bring a section 1170(d) recall motion and that denial of such a motion does not affect substantial rights under section 1237; Roe adds that acts taken after loss of 1170(d) jurisdiction have no effect and cannot be appealed. Because judgment was the September 11, 1990 sentence (Perez) and no resentencing ever occurred, the April 12 order was post-judgment and non-appealable. The court reasonably distinguished Dix footnote 18 because Chlad's filing was a formal, opposed motion rather than an informal request.
Appellate refusal to treat the appeal as a petition for writ of habeas corpus or mandate
“Thus, even were we to treat this appeal as a petition for habeas corpus, Chlad has failed to establish grounds for relief.”
de novocorrectagree with court
Habeas relief for sentencing error requires a showing that the trial court acted in excess of jurisdiction (Roe, Olken); the 14-year sentence was authorized by statute and within the plea bargain's 19-year cap, and declining to act without jurisdiction cannot be an excess of jurisdiction. Mandate cannot compel an act outside the court's jurisdiction (Franklin). The reasoning follows the cited authorities.

Authorities

  • relied: Dix v. Superior Court (1991) 53 Cal.3d 442 — Section 1170(d) permits recall only on the court's own motion within 120 days of commitment or on recommendation of the Director or Board; the court loses own-motion jurisdiction if it fails to recall the sentence within 120 days, and an informal request to act does not defeat own-motion jurisdiction.
  • relied: People v. Perez (1979) 23 Cal.3d 545 — Judgment in a criminal case is synonymous with the imposition of sentence.
  • relied: People v. Druschel (1982) 132 Cal.App.3d 667 — A defendant has no standing to move for recall of sentence under section 1170(d), and denial of such a motion does not affect substantial rights under section 1237.
  • relied: People v. Gainer (1982) 133 Cal.App.3d 636 — Denial of a defendant's section 1170(d) motion is not an appealable order affecting substantial rights.
  • relied: People v. Roe (1983) 148 Cal.App.3d 112 — A judgment entered after the court loses section 1170(d) jurisdiction has no effect and cannot be appealed; habeas corpus is available to challenge judicial acts in excess of jurisdiction.
  • relied: People v. Olken (1981) 125 Cal.App.3d 1064 — To obtain habeas relief from a sentence the defendant must show the trial court exceeded its jurisdiction; a sentence authorized by law and within the plea bargain is not in excess of jurisdiction.
  • relied: Franklin v. Municipal Court (1972) 26 Cal.App.3d 884 — Mandate may not issue to compel action that is not within the court's jurisdiction.

The appellate opinion: sound — The opinion applies Dix's clear rule that recall, not merely an expression of intent to retain control, must occur within 120 days, and it correctly treats the standing and appealability questions under Druschel, Gainer, Roe and section 1237. It answers each of Chlad's arguments, including the Dix footnote 18 point and the alternative writ theories, with on-point published authority.

How this analysis was made · dispute it

Opinion — Kremer

Opinion

KREMER, P. J.

Gary Chlad appeals an order denying a motion to modify his sentence under Penal Code 1 section 1170, subdivision (d). 2 Chlad contends (1) the trial court had jurisdiction to resentence him under section 1170, subdivision (d) and (2) the order denying his motion is an appealable order. We dismiss the appeal.

Procedural Background

On April 23, 1990, Chlad pleaded guilty to nine counts of second degree robbery (§§211, 212.5) and using a firearm in connection with each count (§ 12022.5) under a plea bargain providing a maximum prison sentence of 19 years.

On September 11,1990, Judge Brown sentenced Chlad to a 14-year prison term.

On October 31,1990, Chlad’s attorney sent a letter to Judge Brown noting Chlad had been transferred to Deuel Vocational Institute without the benefit of a section 1170, subdivision (d) hearing. Counsel requested such a hearing take place to resentence Chlad “within the 120 days stipulated by 1170(d).”

On November 26, 1990, the court entered an order stating:

“Sentencing docket is amended (nunc pro tunc to 9/11/90) to add that [Chlad] is sentenced under PCI 170(d). [1] Clerk is directed to prepare an amended abstract immediately.”

*1723 In response to the amended abstract of judgment, the warden at Deuel Vocational Institute sent Judge Brown a diagnostic study of Chlad on December 31, 1990. The study recommended no change in Chlad’s sentence. 3

On February 7, 1991, Chlad’s attorney filed a “Motion To Modify Sentence Pursuant To Penal Code § 1170(d).” In response, the prosecution noted Chlad was sentenced on September 11,1990 and the 120-day time limitation for recalling sentence under section 1170, subdivision (d) had expired on January 9,1991. As a result, the prosecution claimed the trial court no longer had jurisdiction to resentence Chlad. In addition, the prosecution claimed Chlad had no standing to file a motion to recall his sentence because “a defendant has no right to initiate a section 1170(d) proceeding himself.”

On March 7, 1991, the court granted Chlad’s motion after finding it had jurisdiction under section 1170, subdivision (d). A sentence modification hearing was set for April 12, 1991.

At the April 12 hearing, the court stated it had intended to reduce Chlad’s sentence by two years. However, because the court no longer believed it had jurisdiction to resentence Chlad under section 1170, subdivision (d), it denied Chlad’s motion to modify his sentence.

On June 10, 1991, Chlad filed a notice of appeal from the April 12 order denying his motion. According to Chlad, the order “constitute[d] the sentence and final judgment of the court."

On August 13, 1991, the Attorney General filed a motion to dismiss the appeal on the ground the April 12 order was not appealable. Specifically, the Attorney General claimed the order was entered after judgment and as a result, under section 1237, subdivision (b) 4 it was appealable only if it affected Chlad’s substantial rights. Claiming Chlad had no standing to make a motion to modify sentence and the court had no jurisdiction to recall his sentence, the Attorney General contended the order denying Chlad’s motion to modify sentence could not have affected his substantial rights.

This court then issued an order directing determination of the Attorney General’s motion to dismiss Chlad’s appeal be deferred until we considered the appeal on its merits.

*1724 Discussion

I

Essentially, Chlad’s claim is the trial court erred in concluding it no longer had jurisdiction to resentence him under section 1170, subdivision (d). We disagree.

“By its terms, section 1170(d) empowers a trial court to recall and vacate a prison sentence after commitment, with but two stated limitations. First, the power may be exercised only upon the court’s own motion, or upon recommendation of the Director of Corrections (Director) or the Board of Prison Terms (Board). Second, in order to recall a sentence on its own initiative, the court must act within 120 days after it committed the defendant to prison.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 456 [279 Cal.Rptr. 834, 807 P.2d 1063].)

“Cases under . . . section 1170(d) . . . [hold] that the court loses ‘own-motion’ jurisdiction if it fails to recall a sentence within 120 days of the original commitment. [Citations.]” (53 Cal.3d at p. 464, original italics.)

Under Dix, a court must recall a sentence within 120 days after the original sentence was imposed but resentencing is not required to occur within the 120-day period. 5 Judge Brown’s November 26, 1990, order was issued within 120 days of Chlad’s original sentencing.

However, nothing in the record indicates Judge Brown intended his November 26, 1990, order as an order recalling Chlad’s sentence. Instead, his order did nothing more than amend the sentencing docket nunc pro tunc to September 11, 1990, to state Chlad was sentenced under section 1170, subdivision (d). As Judge Brown noted:

“As I recall, this is for the record, as I recall, there was a request by [Chlad] for me to sentence under 1170(d). [][]... And at the time I said yes, *1725 that would be acceptable to this court. So that I would retain some control over this case. I wanted to have the—the option available—available to the court to rethink it.”

The trial court did not purport to recall Chlad’s sentence until March 7, 1991, when it initially granted Chlad’s motion to modify his sentence. By then, the 120-day limitation under section 1170, subdivision (d), which began to run when Chlad was sentenced on September 11, 1990, had expired. As a result, at the April 12 hearing the court was correct in finding it no longer had jurisdiction to modify Chlad’s sentence.

We conclude the trial court was without jurisdiction to recall Chlad’s sentence and properly denied his motion to modify sentence.

II

Having concluded the trial court was without jurisdiction to resentence Chlad, we now determine the April 12 order denying Chlad’s motion to modify his sentence is not an appealable order.

A defendant may appeal from a final judgment of conviction or from any order after judgment which affects his or her substantial rights. (§ 1237.) “[Jjudgment is synonymous with the imposition of sentence [citation] . . . .” (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2 [153 Cal.Rptr. 40, 591 P.2d 63].)

Here, because the court never resentenced Chlad within the statutory time period of section 1170, subdivision (d), final judgment of conviction was imposed on September 11, 1990, when Chlad was sentenced to a prison term of 14 years. Thus, the April 12, 1991, order denying Chlad’s motion to modify his sentence constitutes an order made after judgment and is only appealable if it affects Chlad’s substantial rights.

The Attorney General argues Chlad had no standing to bring a motion to recall his sentence under section 1170, subdivision (d), and thus, denial of the motion could not have affected his substantial rights. We agree.

“By its own terms, [a] defendant has no standing to make a motion for recall of sentence pursuant to Penal Code section 1170, subdivision (d), and the denial of such a motion is not one which affects the substantial rights of the defendant within the meaning of Penal Code section 1237 .... [Citations.]” (People v. Druschel (1982) 132 Cal.App.3d 667, 668-669 [183 *1726 Cal.Rptr. 348]; see also People v. Gainer (1982) 133 Cal.App.3d 636, 641 [184 Cal.Rptr. 120].) 6

Moreover, since we have concluded the trial court no longer had jurisdiction to recall Chlad’s sentence when it issued the order denying his motion, denial of the motion could not have affected Chlad’s substantial rights. (See People v. Roe (1983) 148 Cal.App.3d 112, 118 [195 Cal.Rptr. 802] [judgment entered by the court after losing its jurisdiction under § 1170, subd. (d), has no effect and cannot be appealed].)

The trial court’s April 12 order denying Chlad’s motion to modify sentence is not an appealable order.

Ill

Citing People v. Roe, supra, 148 Cal.App.3d 112, 118-119, Chlad argues his appeal may be treated as petition for a writ of habeas corpus.

A defendant may bring a petition for writ of habeas corpus to challenge judicial acts in excess of jurisdiction (People v. Roe, supra, 148 Cal.App.3d 112, 118) and “ ‘he must show that the trial court exceeded its jurisdiction in some manner.’ ” (People v. Olken (1981) 125 Cal.App.3d 1064, 1067 [178 Cal.Rptr. 497], citations omitted.)

Here, Chlad has not shown nor does the record reveal anything to suggest the trial court acted in excess of its jurisdiction. The sentence imposed by the trial court was authorized by law (§§ 213, 12022.5) and was lower than the maximum sentence negotiated under the plea bargain. “Consequently, the court did not exceed its jurisdiction in imposing it. [Citation.]” (People v. Olken, supra, 125 Cal.App.3d 1064, 1067.) Furthermore, since the trial court did not have jurisdiction to grant Chlad’s motion, denial of that motion cannot be considered an act in excess of the court’s jurisdiction. 7

Thus, even were we to treat this appeal as a petition for habeas corpus, Chlad has failed to establish grounds for relief.

*1727 Disposition

The appeal is dismissed.

Work, J., and Nares, J., concurred.

1

All statutory references are to the Penal Code unless otherwise specified.

2

In relevant part, section 1170, subdivision (d) provides:

“When a defendant. . . has been sentenced to . . . state prison . . . the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. . . .”
3

Judge Brown indicated he did not receive the diagnostic study until sometime after March 7,1991. The superior court file contains the original diagnostic study file-stamped January 29, 1991, and a copy of the diagnostic study file-stamped March 15, 1991. However, even if the court did not receive the study until after the 120-day time limitation of section 1170, subdivision (d) expired, Chlad could not have been prejudiced by the delay given the fact the study recommended no change be made in his sentence.

4

Section 1237, subdivision (b) allows a defendant to appeal “From any order made after judgment, affecting the substantial rights of the party.”

5

Justice Mosk’s concurring opinion in Dix points out: “Penal Code section 1170, subdivision (d), authorizes the trial court to resentence a defendant in the ‘same manner’ as if the defendant has not previously been sentenced. . . . [f] The ‘same manner’ requires resentencing within the statutory period specified in Penal Code section 1191, that is, 28 days. Thus the trial court may recall its sentence within 120 days of the date of the commitment, and then must resentence the defendant within 28 days thereafter” unless the defendant waives time for resentencing. (Dix v. Superior Court, supra, 53 Cal.3d 442, 465-466.)

Here, the resentencing hearing occurred more than 28 days after Judge Brown’s November 26, 1990, order and thus did not occur within the statutory period of section 1191. We do not, however, need to address the timeliness of the hearing since no resentencing actually took place.

6

Chlad cites Dix for the proposition “a recall [of sentence] does not exceed the court’s ‘own-motion’ jurisdiction simply because the court was approached with an informal request to act.” (Dix v. Superior Court, supra, 53 Cal.3d 442, 465, fn. 18.) We do not construe Chlad’s motion, which was supported by argument, filed with the court and challenged when the prosecution filed an opposition, as an informal request to act.

7

Because the trial court did not have jurisdiction to grant Chlad’s motion, we reject Chlad’s assertion his appeal can be treated as a petition for writ of mandate. “ ‘Mandate may not issue to compel action which is not within the court’s jurisdiction.’ [Citation.]” (Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 898 [103 Cal.Rptr. 354].)

Cites, in this corpus

Cited by