Filed 5/20/21 P. v. Hosmer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C090798
Plaintiff and Respondent, (Super. Ct. No. 18CF07018)
v.
JEREMY LEE HOSMER,
Defendant and Appellant.
Defendant Jeremy Lee Hosmer appeals from the trial court’s failure to grant his
motion to recall his sentence under Penal Code1 section 1170, subdivision (d)(1). We
conclude the court did not have jurisdiction to recall defendant’s sentence and will
dismiss his appeal.
1 Further undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
Defendant reported to county jail and was found in possession of 11.7 grams of
cannabis.2 He told jail personnel “he brought more than he could use and hoped to make
some money for his wife while he was in jail.”
On February 27, 2019, defendant pled no contest to possession of cannabis in a jail
(§ 4573.6, subd. (a)), misdemeanor possession of cannabis for sale (Health & Saf. Code,
§ 11359, subd. (b)), and admitted he had served five prior prison terms (§ 667.5,
subd. (b)). Defendant had been on probation in another case at the time of this offense.
On April 3, 2019, the court sentenced defendant in both cases to a total prison
term of nine years eight months.
On July 22, 2019, defendant filed a “MOTION FOR MODIFICATION OF
SENTENCE, PURSUANT TO CALIFORNIA PENAL CODE § 1170(D).” Defendant
stated in his motion that his conviction for possession of contraband in prison should be
dismissed because it is no longer a felony.
On September 18, 2019, the court held a hearing on the motion, and noted that
defendant’s motion was based on People v. Raybon (2019) 36 Cal.App.5th 111, which
concluded possession of cannabis inside a county jail is no longer a crime. However, the
court also noted that since defendant filed his motion, our Supreme Court had granted
review of that case. The court took defendant’s case “off calendar in light of Raybon
being under review in the California Supreme Court. In the event that the Supreme Court
upholds the decision in Raybon, [defendant] can certainly review his petition and be
brought back for resentencing.”
2 In 2017, the Legislature substituted the term “cannabis” for “marijuana” in the
Health and Safety Code. (Stats. 2017, ch. 27, §§ 113-160.) Consequently, we use the
term cannabis throughout this opinion for all purposes.
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On November 4, 2019, defendant appealed based on his “motion of modification
of sentence.”
DISCUSSION
Defendant argues the trial court erred when it failed to rule on his motion to recall
his sentence because the court mistakenly believed defendant could refile his motion after
the 120-day deadline in section 1170, subdivision (d)(1). The People contend the court
never recalled defendant’s sentence and instead, denied defendant’s motion. In that
regard, the People argue the trial court did not abuse its discretion.
Section 1170, subdivision (d)(1) provides that a trial court “may, within 120 days
of the date of commitment on its own motion . . . recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as if they had not
previously been sentenced.” This provision “is an exception to the common law rule that
the court loses resentencing jurisdiction once execution of sentence has begun” and
permits courts to recall the sentence “for any reason rationally related to lawful
sentencing.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 455, 456.) “However, the
120-day period specified in section 1170, subdivision (d) is jurisdictional; the court must
recall the sentence within the prescribed period.” (People v. Lockridge (1993)
12 Cal.App.4th 1752, 1757.) If the trial court does not have jurisdiction to rule on a
motion to vacate or modify a sentence, an order denying such a motion is nonappealable,
and any appeal from such an order must be dismissed. (People v. Turrin (2009)
176 Cal.App.4th 1200, 1208; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726;
People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.)
The trial court here did not have jurisdiction to recall defendant’s sentence after
August 1, 2019. There are no indications in the record the court ruled on defendant’s
motion before the September 18, 2019, hearing and by that point the court had lost
jurisdiction. Therefore, the court did not have jurisdiction to consider defendant’s motion
at the hearing on September 18, 2019, and, even if the court denied defendant’s motion at
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that hearing (as the People contend), the order was nonappealable. Accordingly, we
dismiss the appeal.
DISPOSITION
The appeal is dismissed.
/s/
Robie, Acting P. J.
We concur:
/s/
Murray, J.
/s/
Duarte, J.
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