Filed 6/20/22 P. v. Reyes CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B312515
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA034752)
v.
ALEXANDER REYES,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, David C. Brougham, Judge. Dismissed.
Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Alexander Reyes appeals from an order denying his motion
to strike prior convictions. However, the order is not appealable,
and therefore we dismiss the appeal.
BACKGROUND
In 1997, a jury found Reyes guilty of possession of a firearm
by a felon (Pen. Code,1 former § 12021, subd. (a)(1)). After a court
trial on three priors that had been alleged under the Three
Strikes law and that arose out of Reyes’s 1994 conviction for a
robbery involving three victims, the trial court found the priors
true. At the 1998 sentencing hearing, the trial court denied
Reyes’s Romero2 motion and motion to stay sentences on various
counts under section 654 and sentenced him to 25 years to life
plus one year (§ 667.5, subd. (b)). On appeal, that judgment of
conviction was modified to correct presentence custody credits
but otherwise affirmed. (People v. Alexander Reyes (May 12,
1999, B120499) [nonpub. opn.].)
Then, in 2014, Reyes petitioned the trial court to recall his
sentence under the Three Strikes Reform Act of 2012, which
reduced the punishment for some third-strike offenses that were
neither violent nor serious. (See generally §§ 667, 1170.12,
1170.126.) The trial court denied the petition because of a
disqualifying factor (Reyes had been armed with a firearm during
the commission of his offense) and that order was affirmed on
appeal. (People v. Alexander Reyes (Apr. 18, 2016, B264694)
[nonpub. opn.].)
1 All further undesignated statutory references are to the Penal
Code.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2
In 2019, Reyes again moved to dismiss a prior conviction
and to be sentenced as a second striker. Relying on People v.
Vargas (2014) 59 Cal.4th 6353 and section 1385, he argued that
he should be sentenced as if he had only one qualifying strike
because his prior convictions had been tried in the same
proceeding, were committed during the course of the same
criminal conduct, and were based on the same act committed at
the same time.
Due to numerous continuances, the matter was not heard
until April 2021. The trial court denied the motion, finding no
legal basis for it to take any action.
DISCUSSION
Reyes now appeals from the postjudgment order denying
his motion to dismiss a prior conviction. However, the general
rule is that once judgment is rendered and execution of the
sentence has begun, the trial court does not have jurisdiction to
vacate or to modify the sentence. (People v. Torres (2020) 44
Cal.App.5th 1081, 1084.) Where a trial court lacks jurisdiction to
rule on a motion, the appeal from an order denying such a motion
is nonappealable. (Ibid.)
As Reyes notes, there are exceptions to the general rule.
Section 1170.03, subdivision (a), for example, gives a trial court
authority to recall a sentence on its own motion within 120 days
of the defendant’s remand or at any time upon a request by
various law enforcement officials. Reyes also refers to
resentencing under sections 1170.126, 1170.18, and 1170.95 and
3People v. Vargas, supra, 59 Cal.4th at page 637, held that two
prior convictions arising out of a single act against a single victim
cannot constitute two strikes under the Three Strikes law.
3
to the principle that courts may correct unauthorized sentences
at any time. (See generally People v. King (2022) 77 Cal.App.5th
629, 637, petn. for review pending.) Although Reyes refers to
these exceptions, he merely vaguely “asserts that this case falls
within” one of them, without specifying which one.
In any event, defendant was sentenced and remanded in
1998, so this matter is far beyond the 120-day limit in section
1170.03, subdivision (a). Reyes has made no argument or motion
under sections 1170.126, 1170.18, and 1170.95, and, moreover,
his prior motion under section 1170.126 was denied. And “the
unauthorized sentence doctrine is a principle of waiver rather
than jurisdiction” and the doctrine does not “create jurisdiction
for the trial court to rule on a motion challenging the legality of a
sentence.” (People v. King, supra, 77 Cal.App.5th at p. 637; see
also People v. Chavez (2018) 4 Cal.5th 771, 781 [§ 1385 does not
allow trial court to act after judgment becomes final].) Reyes has
therefore not shown that the trial court had jurisdiction to
consider his motion.
Reyes’s contention that his one-year term should have been
stricken under Senate Bill No. 136 (2019–2020 Reg. Sess.)
similarly fails. Effective January 1, 2020, Senate Bill No. 136
amended section 667.5, subdivision (b), to “limit its prior prison
term enhancement to only prior prison terms for sexually violent
offenses, as defined in Welfare and Institutions Code section
6600, subdivision (b).” (People v. Jennings (2019) 42 Cal.App.5th
664, 681.) Senate Bill No. 136, however, applies retroactively to
cases not final on appeal. (Jennings, at pp. 680–682; People v.
Lopez (2019) 42 Cal.App.5th 337, 340–342.) Reyes’s 1998
judgment was final years ago. (See generally People v. Buycks
(2018) 5 Cal.5th 857, 876, fn. 5 [judgment is final when time for
4
filing petition for certiorari with United States Supreme Court
expires].)
Finally, because the order is not appealable, we need not
further address Reyes’s contentions, for example, that his counsel
rendered ineffective assistance of counsel.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
KALRA, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
5