Filed 8/30/22 P. v. Kennedy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
A162621
v.
MICHAEL D. KENNEDY, (Solano County
Super. Ct. No. VCR233950 &
Defendant and Appellant. VCR227041)
Under former Penal Code section 1170, subdivision (d) 1, a trial court
has 120 days to recall a sentence on its own motion. After that, it loses
jurisdiction. Appellant Michael D. Kennedy was sentenced to an aggregate
term of seven years in state prison after the trial court revoked his probation.
On the 119th day after he was sentenced, appellant filed a “Motion to
Request a Recall of Sentence” asking the trial court to recall and modify his
sentence pursuant to section 1170, subdivision (d). The court held a hearing
on the motion and declined to modify his sentence. We address the narrow
After this appeal was filed, Penal Code section 1170, subdivision (d)
1
was renumbered to 1170.03 (Stats. 2021, ch. 719 § 3.1 (AB 1540), effective
January 1, 2022). That section was subsequently amended and renumbered
1172.1 (Stats. 2022, ch. 58 (AB 200), § 9, effective June 30, 2022.) The
relevant provisions of the former subdivisions are unchanged. (See, section
1170.03, subd. (a)(1) and 1172.1 subd. (a)(1).)
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question of whether the filing of appellant’s motion requesting the court to
recall its sentence constitutes a timely recall of the sentence by the court on
its own motion. We conclude that it does not and the court was without
jurisdiction to consider the motion or to recall the sentence after 120 days.
Because the trial court no longer had jurisdiction to recall the sentence or to
issue its order this appeal must be dismissed because it was taken from an
unappealable order.
FACTUAL AND PROCEDURAL BACKGROUND
On July 8, 2019, appellant pleaded no contest to inflicting corporal
injury on a former dating partner (Pen. Code, § 273.5)2 and admitted
personally inflicting great bodily injury (§ 12022.7, subd. (e)) in case No.
VCR227041. He also pleaded no contest to making criminal threats (§ 422) in
case No. VCR233950.3
On September 9, 2019, the trial court suspended imposition of sentence
and placed appellant on probation for three years in both cases, to be served
concurrently.
On July 31, 2020, the trial court found that appellant had violated the
terms of his probation and revoked probation.
On September 18, 2020, the trial court denied appellant a further grant
of probation and sentenced him to a total of seven years in state prison: a
three-year midterm for the violation of section 273.5, and four years for the
great bodily injury enhancement under section 12022.7, subdivision (e). The
2 All undesignated statutory references are to the Penal Code.
3We omit any recitation of the facts of the offenses as they are not
relevant to the claim raised on appeal.
2
court terminated probation in case No. VCR233950. Appellant did not appeal
his sentence.
On January 15, 2021, appellant filed a “Motion to Request a Recall of
Sentence” under former section 1170, subdivision (d). Appellant, who is
Black, noted that the complaining witness at his probation revocation
hearing admitted to using racially charged language during the incident that
led the trial court to revoke his probation. Citing to the recently enacted
California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) 4, appellant’s
counsel urged the court to deem this circumstance a mitigating factor, recall
his sentence, and place him on a new grant of probation. The motion was
calendared for February 5, 2021.
On February 1, 2021, the People filed an opposition to the appellant’s
request, arguing that the trial court lacked jurisdiction because the 120-day
time period within which the court could have recalled the sentence under
former section 1170, subdivision (d) had expired.
At the continued hearing held on March 24, 2021, the trial court stated
“I think, as a technical matter, I have the authority to substantively consider
resentencing. And so I will do so. I will reconsider it.” The court then
declined to modify the sentence. This appeal followed.
DISCUSSION
As a threshold matter, the Attorney General contends that this appeal
should be dismissed because the trial court had no jurisdiction to hold a
hearing under former section 1170, subdivision (d) as it did not recall
4 Under the California Racial Justice Act of 2020, “[t]he state shall not
seek or obtain a criminal conviction or seek, obtain, or impose a sentence on
the basis of race, ethnicity, or national origin.” (§ 745, subd. (a).) (See also
Young v. Superior Court (2022) 79 Cal.App.5th 138, 143.)
3
appellant’s sentence within 120 days, as required by that subdivision. We
agree.
A. Applicable Legal Principals
“ ‘A defendant may appeal from a final judgment of conviction or from
any order after judgment which affects his or her substantial rights. (§ 1237.)
“Judgment is synonymous with the imposition of sentence.” ’ ” (People v.
Chamizo (2019) 32 Cal.App.5th 696, 699-700.) “The right to appeal is
statutory only, and a party may not appeal a trial court’s judgment, order or
ruling unless such is expressly made appealable by statute.” (People v. Loper
(2015) 60 Cal.4th 1155, 1159 (Loper).)
A trial court typically lacks jurisdiction to change a defendant’s
sentence once execution of the sentence begins. (People v. Karaman (1992) 4
Cal.4th 335, 344.) An exception to this rule is that an unauthorized sentence
may be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354-355;
People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.) Another exception is
provided in former section 1170, subdivision (d). (People v. McCallum (2020)
55 Cal.App.5th 202, 210.) The subdivision authorizes a trial court to, “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 . . . recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as if
they had not previously been sentenced, provided the new sentence, if any, is
no greater than the initial sentence.” (Former § 1170, subd. (d)(1), italics
added.) Under this provision, the prior sentence and order of commitment is
effectively “vacate[d],” and the trial court may sentence defendant anew, to
an equal or lesser sentence. (Dix v. Superior Court (1991) 53 Cal.3d 442,
456.)
4
A defendant has no right to bring a motion under section 1170,
subdivision (d).5 (Loper, supra, 60 Cal.4th 1155 at p. 1165; People v. Chlad
(1992) 6 Cal.App.4th 1719, 1725 (Chlad).) A defendant may, however, invite
the court to make its own motion to recall the sentence within the first 120
days of the defendant’s commitment. (Loper, supra, 60 Cal.4th at p. 1167.)
After that 120-day period, however, the court has no jurisdiction to recall a
sentence on its own motion or to act upon defendant’s invitation to do so. (Id.
at p. 1165; Chlad, supra, 6 Cal.App.4th at p. 1725.) Because of the absence of
jurisdiction in that situation, a court’s order denying a defendant’s motion
filed more than 120 days after his or her commitment is not appealable, and
an appeal from such an order should be dismissed. (Loper, supra, 60 Cal.4th
at pp. 1165-1166; Chlad, supra, 6 Cal.App.4th at pp. 1725, 1727.)
B. Analysis
We must dismiss the appeal because the trial court here lost its “own
motion” jurisdiction to recall appellant’s sentence once the 120-day timeframe
had expired. Appellant was sentenced on September 18, 2020. He filed his
motion on January 15, 2021, which was one day before the expiration of the
120-day period within which the trial court could have recalled his sentence
on its own motion. However, the court did not act on appellant’s motion until
March 24, 2021, which was 68 days after the 120-day period had expired.
Even if the motion had been heard on the date on which it was originally
calendared (February 5, 2021) the ruling would still have been beyond the
120-day window.
5Likewise, a defendant has no standing to bring a sentencing recall
motion under newly-enacted section 1170.03 or the renumbered section
1172.1. The language regarding which entities may bring such motion is the
same as former section 1170, subdivision (d). (See §§ 1170.03, subd. (a)(1)
and 1172.1, subd. (a)(1).)
5
In his reply brief, appellant maintains that the trial court recalled his
sentence on the date that he filed the motion, when the court set a hearing
date for resentencing. He asserts that “the trial court exercised its authority
to recall the sentence prior to the 120-day mark when it accepted the
defendant’s request, filed the motion, and set a hearing date for resentencing
on the 119th day.” He also faults the Attorney General’s reliance on Chlad
because, the defendant in Chlad did not file a motion pursuant to former
section 1170, subdivision (d) until 149 days after he was sentenced, which
was after the 120 day deadline. (Chlad, supra, 6 Cal.App.4th at p. 1722.)
While it is true that the facts of Chlad differ from the facts presented here,
the difference is inconsequential.
Although appellant’s motion was submitted within the 120-day
timeframe, the request itself did not initiate a recall proceeding. Rather, it
was a request for the trial court to initiate such a proceeding. We also
disagree with appellant that by filing his motion which included a hearing
date, the court “de facto” exercised its authority to recall his sentence on its
own motion prior to the expiration of jurisdiction. Typically, a motion that is
filed will be calendared by the court clerk, not the trial judge, and such a
clerical act is not the equivalent of a substantive, legally binding ruling
recalling the sentence. The mere filing of appellant’s motion requesting the
court recall the sentence does not constitute a decision by the court on its
“own motion” to recall the sentence. The court lost jurisdiction to recall the
sentence after the 120th day following sentencing. Moreover, the trial court
was under no duty to render a timely decision upon appellant’s request. (See
Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1836 [finding the
defendant was not entitled to relief pursuant to a writ of mandamus because
6
the trial court had no clear duty to act upon a defendant’s request for
resentencing under former § 1170, subd. (d)(1)].)
The court appeared to conclude that it had jurisdiction to recall
appellant’s sentence based on the date that appellant filed his motion.
However, the court was mistaken because it failed to recall the sentence on
its “own motion” within 120 days. At no time during the 120 days after
sentencing did the court indicate or state that it was recalling the sentence on
its own motion. And, although the court did act on appellant’s request, the
court’s action did not occur until after the 120-day period had expired.
Therefore, the court was without jurisdiction to recall and reconsider
appellant’s sentence when it denied the motion.6
Because the trial court was without jurisdiction to rule on appellant’s
request, its decision did not affect appellant’s substantial rights within the
meaning of section 1237. (Chlad, supra, 6 Cal.App.4th at p. 1726 [because
the court lacked jurisdiction to consider the defendant’s untimely motion to
modify his sentence, denial of the motion could not have impacted his
substantial rights]; see also People v. Dynes (2018) 20 Cal.App.5th 523, 528
[denial of motion to modify sentence brought outside of regulations to be
adopted pursuant to Prop. 57 was not appealable].) Resultingly, the March
24, 2021 order is not an appealable order.
Having concluded defendant has appealed from a nonappealable order,
we need not address the parties’ remaining arguments.
DISPOSITION
The appeal is dismissed.
6 Assuming a court timely recalls a sentence within 120 days,
resentencing need not occur within the 120-day period. Dix v. Superior
Court, supra, 53 Cal.3d at p. 464.
7
WISS, J.
WE CONCUR:
MARGULIES, ACTING P.J.
BANKE, J.
A162621
Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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