Filed 8/31/15 P. v. Smiley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
A144914
v.
DERRAN SMILEY, (Alameda County
Super. Ct. No. 149560)
Defendant and Appellant.
MEMORANDUM OPINION1
Defendant Derran Smiley appeals from the trial court’s denial of his motion to
modify his sentence, filed several years after entry of judgment following a jury trial in
2006. In an unpublished decision filed in 2007, we affirmed defendant’s convictions on
one count of kidnapping to commit rape and five counts of forcible rape. (People v.
Smiley (Sept. 19, 2007, A113874) [nonpub. opn.].) In that decision, we affirmed the
imposed sentence of consecutive terms of 24 years and 25 years to life, rejecting
defendant’s contention that consecutive sentences on three of the counts of rape, all of
which were committed against the same woman on the same night, were inappropriate
because there was insufficient evidence they were committed on “separate occasion[s],”
as required by statute.
On March 17, 2015, defendant filed a “Motion for Modification of Sentence” in
the trial court, arguing his sentence was contrary to law because (1) there were errors in
1
We resolve this case by a memorandum opinion pursuant to California Standards
of Judicial Administration, section 8.1(1), (3).
the abstract of judgment; (2) the sentence for forcible rape exceeded the statutory
maximum; (3) the enhancement of Penal Code section 667.61, subdivision (a) was
improperly applied; and (4) the consecutive sentences for rape were improperly imposed.
The trial court entered an extensive written order denying defendant’s motion. In so
doing, the court addressed defendant’s arguments, finding they were without merit and
noting that, in any event, it lacked jurisdiction to alter the imposed sentence. The trial
court did, however, correct the abstract of judgment to state that a kidnapping allegation
had been found true for all of the forcible rape counts, as reflected in the transcript of the
sentencing hearing.
On appeal, defendant’s counsel has raised no issues and asks this court for an
independent review of the record to determine whether there are any issues that would, if
resolved favorably to defendant, result in reversal or modification of the judgment.
(People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith
v. Robbins (2000) 528 U.S. 259.) Counsel notified defendant that he is entitled to file a
supplemental brief with the court, and defendant has submitted a brief repeating the
issues raised in the trial court and adding arguments relating to the merits of his
conviction.
Upon independent review of the record, we conclude we must dismiss the appeal
without reaching the merits of defendant’s arguments. Following the expiration of the
120-day period for modification of a sentence under Penal Code section 1170,
subdivision (d), a trial court lacks jurisdiction to modify a sentence, assuming execution
of the sentence has begun. (People v. Espinosa (2014) 229 Cal.App.4th 1487, 1496–
1497; People v. Turrin (2009) 176 Cal.App.4th 1200, 1204–1205.) While the court had
the authority to correct the clerical error in the abstract of judgment, it had no power to
correct a purported “judicial” error. (Turrin, at p. 1205.) Further, the filing of a motion
is not a proper means for seeking modification of sentence once a criminal proceeding
has terminated by entry of judgment (People v. Picklesimer (2010) 48 Cal.4th 330, 337),
and “an order denying a motion to modify the judgment in a criminal case is not an
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appealable order.” (People v. Mendez (2012) 209 Cal.App.4th 32, 34, fn. 1.)
Accordingly, the appeal of such an order must be dismissed. (Id. at p. 34.)
For these reasons, defendant’s appeal is dismissed.
_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
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