Filed 5/13/21 P. v. Vega CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B308765
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA051544)
v.
ANGEL LOUIS VEGA, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jared D. Moses, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Defendant and appellant Angel Louis Vega, Jr. (defendant)
purports to appeal from a postjudgment order denying his motion
filed pursuant to Penal Code section 1170, subdivision (d)(1)
(section 1170(d)(1)). We conclude the order is not appealable, and
dismiss.
BACKGROUND
In 2003, a jury convicted defendant of second degree
murder, and found true the allegation that in committing the
offense he personally used a dangerous and deadly weapon, a
knife. On December 29, 2003, the trial court sentenced defendant
to 16 years to life. This court affirmed the judgment on
February 25, 2005.
In 2020, defendant filed a motion in the trial court
“request[ing] appointment of counsel to represent me at [a]
resentencing hearing pursuant to Penal Code 1170(d)(1).” The
motion attached an “informal request” to the Los Angeles County
District Attorney for a recommendation that the trial court recall
defendant’s sentence and resentence him to a lower term. In that
“informal request,” defendant argued his sentence was
unconstitutional, the reasons for which are not pertinent to our
resolution of the appeal before us.
The trial court “reviewed the motion for appointment of
counsel” and denied it without comment. Defendant filed a notice
of appeal. We appointed appellate counsel, who found no
arguable issues and requested we follow the procedures set forth
in People v. Serrano (2012) 211 Cal.App.4th 496.
We notified defendant that he could file a supplemental
brief, which he did.
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DISCUSSION
In his supplemental brief, defendant raises a myriad of
arguments as to why under section 1170(d)(1) his sentence
should be recalled and he should be resentenced, including that
Penal Code section 189 and California’s felony-murder laws are
unconstitutionally vague; he has served more time than his “base
term”; under the policies of the new Los Angeles County District
Attorney, a lower prison term would have been recommended;
and the trial court erred in instructing the jury. We do not
address the merits of these claims because the order from which
defendant purports to appeal is a nonappealable order.
Section 1170(d)(1) provides, in relevant part, that the trial
court “may, within 120 days of the date of commitment on its own
motion, or at any time upon the recommendation of the secretary
or the Board of Parole Hearings in the case of state prison
inmates, the county correctional administrator in the case of
county jail inmates, or the district attorney of the county in which
the defendant was sentenced, recall the sentence and
commitment previously ordered and resentence the defendant in
the same manner as if they had not previously been
sentenced . . . .”
It is not clear if defendant’s motion in the instant case
constitutes a request that the trial court on its own motion recall
his sentence under section 1170(d)(1), or merely a request for
appointment of counsel in anticipation that the district attorney
would grant his “informal request” for a recommendation that the
trial court recall his sentence. We need not resolve this
ambiguity—under either interpretation the trial court’s order
denying the motion is not appealable, because the order did not
affect defendant’s substantial rights. (See Pen. Code, § 1237,
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subd. (b) [appeal may be taken “[f]rom any order made after
judgment, affecting the substantial rights of the party”].)
Construing defendant’s motion as a request that the trial
court on its own motion recall his sentence, the trial court had no
authority to do so. Section 1170(d)(1)’s 120-day limitation is
absolute: “[T]he trial court loses jurisdiction to resentence on its
own motion after 120 days has elapsed.” (People v. Loper (2015)
60 Cal.4th 1155, 1165.) A trial court’s declining to recall a
sentence on its own motion more than 120 days after the date of
commitment does not affect the substantial rights of the
defendant, because the trial court had no jurisdiction to recall the
sentence in the first place. (People v. Chlad (1992) 6 Cal.App.4th
1719, 1726; see Loper, at pp. 1165–1166 [citing Chlad with
approval].) Accordingly, the trial court’s denial of defendant’s
request, filed more than 120 days after the date of commitment,
is not an appealable order. (Chlad, at p. 1726; Loper, at p. 1166.)
Alternatively, if we construe defendant’s motion as merely
requesting appointment of counsel for an anticipated
section 1170(d)(1) hearing, again the denial did not affect his
substantial rights. There is no indication in the record that the
district attorney granted defendant’s “informal request” to
recommend that the trial court recall his sentence. Thus, there
were no pending proceedings concerning a sentence recall for
which counsel might be required.1 Put another way, defendant’s
request for counsel was premature, and therefore his rights
were not affected by the denial of the request.
1 We express no opinion whether defendant would be
entitled to counsel were there pending proceedings.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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